author: HENNESSY, J.

text:
    H.O.R.S.E. OF CONNECTICUT, INC. v. TOWN OF WASHINGTON
    (AC 18353)
    Lavery, Hennessy and Vertefeuille, Js.

      Argued October 27, 1999
    officially released March 21, 2000

      William C. Franklin, for the appellant (defendant).

      Jeffrey J. Tinley, with whom was Robert Nastri, Jr., for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant, the town of Washington, appeals from the trial court’s judgment granting the motion by the plaintiff, H.O.R.S.E. of Connecticut, Inc., for summary judgment stemming from its claim for a tax exemption. The defendant claims that the court improperly rendered summary judgment because (1) there were material issues of fact in dispute and (2) even if there were no material issues of fact in dispute, as a matter of law, the plaintiff is not a charitable organization within the meaning of General Statutes § 12-81 (7). We affirm the judgment of the trial court.

The court’s memorandum of decision sets forth the following facts. The town of Washington board of assessment appeals denied the plaintiffs claim for an exemption from local taxation as to a forty-six acre parcel of land that the plaintiff owns and operates as a farm for injured, distressed and mistreated horses. The plaintiff appealed to the Superior Court, claiming that it is entitled to a tax exemption under § 12-81 (7) because it is a corporation organized exclusively for charitable purposes, and it uses the property exclusively to carry out such purposes. The court noted that the plaintiffs corporate charter reveals that its objectives are to “unite into one organization the care of all abused, neglected, unwanted and lost domestic hoofed animals”; to “provide education and training pertinent to the care of hoofed animals for employees, members and officers, and the community as a whole”; and “to safeguard, advance and promote the safety and well-being of domestic hoofed animals by political, educational and other community activity.” The plaintiffs president, Patricia Wahlers, resides on the property in a home and cares for the horses.

After the plaintiff and the defendant each filed motions for summary judgment, the court granted the plaintiffs motion, finding as a matter of law that the plaintiff is a charitable organization that uses its property exclusively for charitable purposes.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [plaintiff] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

I

The defendant claims first that the motion for summary judgment was improperly granted because a genuine issue of material fact exists as to whether the plaintiff operates a commercial boarding facility, which would call into question whether the plaintiffs property is used exclusively for charitable purposes as is required under § 12-81 (7) for a tax exemption. We are unpersuaded.

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citations omitted; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 255, 654 A.2d 748 (1995).

Relying on Wahlers’ deposition and an affidavit of the plaintiffs accountant, the defendant claims that there is a dispute as to whether the plaintiff is operating a commercial boarding facility. The defendant cites to Wahlers’ deposition testimony that people can and do board healthy horses for a monthly fee on the property. The plaintiff claims that some of these horses are “adopted,” having been rehabilitated, while others are healthy and remain on the property for a fee. The plaintiff does not dispute that horses are boarded on the property for a monthly fee. It contests only the label of “commercial boarding facility.” Regardless of the terminology, some horses stay on the property for a monthly fee. That fact is not in dispute. The defendant’s conclusory assertion that such boarding constitutes a “commercial boarding facility” is a characterization of the facts and not a demonstration that there is a genuine issue of material fact in dispute.

II

The defendant claims next that even if the material facts are not in dispute, the court nevertheless improperly granted the plaintiffs motion for summary judgment because the plaintiff is not entitled to judgment as a matter of law. The defendant claims that the plaintiff (1) is not a charitable organization within the meaning of § 12-81 (7) and (2) does not use the property exclusively for carrying out charitable purposes. We disagree.

Our Supreme Court has held that “[i]t is a settled rule of law that statutes which exempt from taxation are to be strictly construed against the party claiming an exemption. Crescent Beach Assn. v. East Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976); Wiegand v. Heffernan, 170 Conn. 567, 582, 368 A.2d 103 (1976); Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 147, 256 A.2d 234 (1969). Exemptions, no matter how meritorious, are of grace, and must be strictly construed. They embrace only what is strictly within their terms. Hartford v. Hartford Theological Seminary, 66 Conn. 475, 482-83, 34 A. 483 (1895); Woodstock v. The Retreat, Inc., 125 Conn. 52, 56, 3 A.2d 232 (1938).” (Internal quotation marks omitted.) United Church of Christ v. West Hartford, 206 Conn. 711, 718, 539 A.2d 573 (1988). “ ‘It is also well settled that the burden of proving entitlement to a claimed tax exemption rests upon the party claiming the exemption. Curly Construction Co. v. Darien, 147 Conn. 308, 160 A.2d 751 (1960); Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 154 A.2d 608 (1959); Cooley Chevrolet Co. v. West Haven, 146 Conn. 165, 148 A.2d 327 (1959); Forman Schools, Inc. v. Litchfield, 14 Conn. Sup. 444, rev’d on other grounds, 134 Conn. 1, 54 A.2d 710 (1947).’ Faith Center, Inc. v. Hartford, [39 Conn. Sup. 142, 153-54, 473 A.2d 342 (1982), aff'd, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984)].” United Church of Christ v. West Hartford, supra, 719.

Our Supreme Court has recognized that “the ‘definition of charitable uses and purposes has expanded with the advancement of civilization and the daily increasing needs of men.’ Camp Isabella Freedman of Connecticut, Inc. v. Canaan, 147 Conn. 510, 514, 162 A.2d 700 (1960). The Camp Isabella [.Freedman of Connecticut, Inc.,] court continued: ‘It no longer is restricted to mere relief of the destitute or the giving of alms but comprehends activities, not in themselves self-supporting, which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and more likely that they will become useful citizens. Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 752, 217 S.W.2d 489 [1949], Charity embraces anything that tends to promote the well-doing and the well-being of social man. Ibid. An institution is charitable when its property and funds are devoted to such purposes as would support the creation of a valid charitable trust. Davie v. Rochester Cemetery Assn., 91 N.H. 494, 495, 23 A.2d 377 [1941].’ [Camp Isabella Freedman of Connecticut, Inc. v. Canaan, supra], 514—15.” United Church of Christ v. West Hartford, supra, 206 Conn. 719-20.

Despite the broadened definition of “charitable uses and purposes,” however, the defendant claims that the plaintiff cannot be considered a charitable organization because it promotes the well-being of horses, not that of social man. In addressing this claim, the court noted that the purpose of the plaintiff corporation is obviously designed to serve the well-being of horses. Furthermore, the court concluded that the promotion of this purpose has long been understood to promote the well-being of social man. In Shannon v. Eno, 120 Conn. 77, 81, 179 A. 479 (1935), our Supreme Court construed a will provision that called for setting aside $2000 “for the purpose of founding and supporting a Catery, to be situated in or near Ansonia, for the care of homeless animals and boarders.” (Internal quotation marks omitted.) In concluding that this will provision created a charitable trust, the court noted that “[t]he intention of the testatrix in making the gift . . . was obviously to afford care and protection to and alleviate the sufferings of that class of animals which by domestication contribute to comfort, pleasure and well being of man; and it is not questioned that such a gift is a proper charitable use.” (Citations omitted.) Id., 82.

In the present case, it also is obvious that the purpose of the plaintiff corporation is to give care and protection to a class of animals that contribute to the comfort, pleasure and well-being of people. Because such a purpose supports the creation of a valid charitable trust and because an institution is charitable when its property and funds are used for such purposes as would support the creation of a valid charitable trust; United Church of Christ v. West Hartford, supra, 206 Conn. 719; we conclude that the plaintiff corporation is a charitable institution.

The defendant also claims that the plaintiff does not use its property exclusively for a charitable purpose. To support its claim, the defendant cites Wahlers’ testimony that people can and do board healthy horses on the property for a monthly fee. Additionally, the defendant notes that Wahlers resides on the property, that other people have resided on the property with her and that Wahlers gives riding lessons on the property that give her a modest personal income.

The plaintiff does not dispute these facts. Rather, it claims that all of the revenue generated from boarding fees is applied exclusively to the plaintiffs charitable purposes, and that the sum of all such revenues is insufficient to support the plaintiffs charitable activities without grants and donations from private sources. In addition, the plaintiff asserts that providing housing to Wahlers and the right to use the property to give lessons never has been held to disqualify an otherwise tax-exempt entity.

“ ‘Whether the property for which exemption is claimed is actually and exclusively used for . . . [charitable] purposes must be determined from the facts of the case.’ [Camp Isabella Freedman of Connecticut, Inc. v. Canaan, supra, 147 Conn. 514].” Waterbury First Church Housing, Inc. v. Brown, 170 Conn. 556, 561, 367 A.2d 1386 (1976). Our Supreme Court has stated that “[t]he existence of a purpose that can be characterized as charitable . . . does not in itself render a corporation charitable and tax-exempt. An institution must be exclusively charitable, not only in the purposes for which it is formed and to which its property is dedicated, but also in the manner and means it adopts for the accomplishment of those purposes.” Id., 562.

“Connecticut law for over 150 years has recognized that an essential characteristic of a charitable organization, besides a charitable purpose, is that it achieve its purpose ‘through the means of funds, derived from the gratuities of the benevolent.’ American Asylum v. Phoenix Bank, 4 Conn. 172, 177 [1822].” Waterbury First Church Housing, Inc. v. Brown, supra, 170 Conn. 562. Therefore, in Waterbury First Church Housing, Inc., our Supreme Court concluded that a corporation, which provided elderly housing for residents who paid rent but did not receive any donations to assist in its operations, did not show sufficient private intervention to earn charitable status. Id., 564. The court noted that it did not appear that the corporation was the beneficiary of private donations, and that the only funds on which it relied were the rental income from its tenants and the federal subsidies it received. Id.

In addition, quoting courts in other jurisdictions, our Supreme Court noted that an institution may qualify for a tax exemption where “aid is dispensed to those in sickness or distress without regard to poverty or riches of the recipient and the funds, property and assets of such institution are placed and bound by its laws to relieve, aid and administer to the relief of those in want, sickness and distress.” (Internal quotation marks omitted.) Id., 565.

In the present case, the plaintiff is a corporation, the aim of which is to help distressed, abused and needy horses. The plaintiff aids horses regardless of their owners’ ability to pay for the services. The animals that require rehabilitation are cared for until they can be adopted. If no one adopts a horse, the plaintiff retires the horse on its property and maintains the animal at no charge until its death. If a horse is adopted, the plaintiff charges the adopting owner $300 per month— all the proceeds of which are used to maintain the adopted horse as well as the other horses that have not been adopted. Moreover, more than one half of the plaintiffs income was derived from donations, grants and fund-raisers. These funds, in turn, are spent to further the plaintiffs charitable purpose.

None of these funds is used to compensate Wahlers for the duties she performs for the plaintiff. Wahlers provides around-the-clock attention to the animals under the plaintiffs care. As part of her duties, she attends to after-hours and early morning care and feedings, as well as emergency care and supervision for the horses. The plaintiff provides housing to Wahlers so she can remain near the horses in case of an emergency and also allows her to give riding lessons that give her a modest personal income.

Officers, members and employees must not receive any pecuniary profit from the operation of the coiporation other than reasonable compensation for their services. See Camp Isabella Freedman of Connecticut, Inc. v. Canaan, supra, 147 Conn. 512; Charter Oak Council, Boy Scouts of America v. New Hartford, 121 Conn. 466, 473, 185 A. 575 (1936). There are no facts alleged that Wahlers makes any profit from the operation of the plaintiff corporation or receives anything other than reasonable compensation for her services by giving riding lessons to provide herself with food and clothing. Because no one receives a profit from the plaintiffs operation, all the money generated from the boarding of horses is used for the plaintiffs charitable purposes and the majority of the plaintiffs income is generated from donations, we conclude that the plaintiff is a charitable organization that uses its property exclusively for charitable purposes.

The judgment is affirmed.

In this opinion the other judges concurred.

       The acronym H.O.R.S.E. stands for “Humane Organization Representing Suffering Equines.”

       Section 12-81 (7) provides a tax exemption for “the real property of, or held in trust for, a corporation organized exclusively for scientific, educational, literary, historical or charitable purposes or for two or more such purposes and used exclusively for carrying out one or more of such purposes and the personal property of, or held in trust for, any such corporation, provided (a) any officer, member or employee thereof does not receive or at any future time shall not receive any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes or as proper beneficiary of its strictly charitable purposes, and provided (b) in 1965, and quadrennially thereafter, a statement on forms prepared by the Secretary of the Office of Policy and Management shall be filed on or before the last day required by law for the filing of assessment returns with the local board of assessors of any town, consolidated town and city or consolidated town and borough, in which any of its property claimed to be exempt is situated. . . .”

       The defendant also noted in its brief that the source of funding for the plaintiffs operation was in dispute. We can find no dispute as to the source of funding for the plaintiff. The plaintiff claims that its primary source of funds is grants and contributions. The defendant claims that 40 percent of the plaintiffs funding is received from boarding horses. The plaintiff does not dispute this fact.


source: Caselaw Access Project

author: FREEDMAN, J.

license: Public Domain

text:
    JEANINE DIXON v. UNITED ILLUMINATING COMPANY
    (AC 18360)
    Spear, Mihalakos and Freedman, Js.

      Argued December 6, 1999
    officially released March 21, 2000

      George J. Markley, with whom were Donald C. Cousins and, on the brief, Mark A. Goldsmith, for the appellant (plaintiff).

      Andrew A. Cohen, for the appellee (defendant).
   Opinion

FREEDMAN, J.

The plaintiff, Jeanine Dixon, appeals from a decision of the compensation review board (board) affirming the decision of the commissioner to dismiss the plaintiffs claim for benefits as the widow of the decedent, Kenneth Dixon. We affirm the decision of the board.

The following facts are relevant to this appeal. The plaintiff was married to the decedent from 1962 until his death on September 28, 1993. The decedent was employed by the defendant, United Illuminating Company, from 1970 until the date of his death. On September 28,1993, the decedent committed suicide by hanging himself in the hallway of his home. At the time of his death, the decedent had an open, compensable workers’ compensation claim for injuries to his neck and back that occurred on July 24, 1987.

The plaintiff argued before the commissioner that the decedent’s 1987 injury, and the resulting surgeries, chronic pain and depression contributed substantially to the decedent’s suicide. The commissioner, in a comprehensive decision, concluded that the plaintiff had failed to prove that the decedent’s suicide was causally related to his 1987 compensable injury. The commissioner concluded, rather, that the “substantial, continued, lifelong alcohol abuse of [the decedent] was the significant contributing factor in his alleged depression and/or psychiatric condition, and ultimately resulted in his suicide . . . .” The commissioner therefore dismissed the claim. This decision was affirmed by the board, and the plaintiff appealed to this court.

The plaintiff argues on appeal that the commissioner improperly (1) allowed Georgann Witte, a clinical psychologist, to testify as an expert regarding whether the decedent’s 1987 workplace injury was a substantial factor contributing to his suicide, (2) failed to apply the substantial contributing factor test and (3) failed to apply the preponderance of the evidence standar d. The plaintiff additionally raises several issues related to the commissioner’s findings of fact. The plaintiff contends that the board improperly upheld the decision of the commissioner with regard to each of these issues.

I

The plaintiff first argues that the board improperly held that the commissioner was entitled to rely on Witte’s testimony in determining whether chronic pain was a substantial contributing factor in the suicide of the decedent. We disagree with the plaintiff.

We initially note the standards that govern our review of this claim. “The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996). “The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.” (Internal quotation marks omitted.) O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 815-16, 728 A.2d 527 (1999).

“Our role is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress[es] him as being most credible and more weighty.” (Citation omitted; internal quotation marks omitted.) Id., 816.

“Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Freeney, 228 Conn. 582, 591, 637 A.2d 1088 (1994). “Once the threshold question of usefulness . . . has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not to the admissibility, of his testimony.” Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489 (1990).

Several witnesses testified at the hearing before the commissioner. The plaintiff presented two medical expert witnesses, James Alexander and Thomas R. Rosten, in support; of her claim that the decedent’s suicide was causally related to his 1987 work-related injury. Alexander, a board certified physician in pain management, saw the decedent on August 17, 1993. Alexander opined that it was reasonably medically probable that the decedent’s suicide was related to and motivated by feelings of helplessness or hopelessness due to chronic pain and major depression. The commissioner, however, did not credit Alexander’s testimony for the reason that it was based on an incomplete and inaccurate medical history. In this regard, the commissioner noted that Alexander was not advised of the decedent’s extensive prior psychiatric history and treatment, nor did he review the decedent’s work records or personal journal.

Rosten, a physician board certified in neurology and psychiatry, testified that he believed that the decedent’s depressive disorder was related to the original injuiy and the sequelae of that injury. He based his opinion on reasonable medical probability that depressive disorder, in addition to the chronic pain syndrome, was a substantial contributing factor in the etiology of the decedent’s suicide. The commissioner, however, credited only part of Rosten’s testimony. The commissioner reasoned that Rosten testified without ever treating the decedent, did not review the decedent’s journal and did not understand or know that the decedent’s job in 1993 did not require physical strength. The commissioner further stated that Kosten based many of his conclusions on a history that began with a work accident and not on a history of approximately twenty years of alcohol abuse and depression prior to the work accident.

The defendant presented evidence at the hearing that the decedent’s suicide was not related to his compensable injury, arguing, rather, that the decedent’s lifelong battle with alcoholism and depression resulted in his suicide. In support of this theory, the defendant presented Witte. The commissioner accepted Witte as an expert in the area of clinical psychology and substance abuse.

The plaintiff argues that the commissioner improperly accepted Witte as an expert. According to the plaintiff, Witte does not qualify as an expert regarding the specific issue in this case, namely, whether chronic pain was a substantial contributing factor in the decedent’s death. The plaintiff contends that to qualify as an expert in this regard, Witte was required to have expertise in chronic pain and the etiology of suicide, which she did not have. In support of this argument, the plaintiff notes that the commissioner accepted Witte as an expert in the areas of clinical psychology and substance abuse, not in the areas of chronic pain and suicide.

We conclude that the commissioner properly permitted Witte to testify as an expert, and that this decision was properly upheld by the board. The issue, as framed by the commissioner, was “whether [the decedent’s] compensable injury to his back and neck of July 24, 1987 and the alleged sequelae of that accident, including cervical and lumbar spine fusions, alleged chronic pain and depression were substantial contributing factors in [the decedent’s] death by suicide . . . .” The record reflects that Witte was qualified to testify regarding this issue. Specifically, Witte was qualified to testify that the decedent’s lifelong battle with alcoholism and depression, rather than chronic pain resulting from his 1987 injury, contributed substantially to the decedent’s death. See Campbell v. Pommier, 5 Conn. App. 29, 37, 496 A.2d 975 (1985) (distinction between psychiatrists and psychologists “does not make one an expert and the other not an expert”); Buckley v. Lovallo, 2 Conn. App. 579, 586-87, 481 A.2d 1286 (1984) (psychiatrist should have been permitted to testify regarding causal relationship between suicide attempt and prior surgery).

With regard to her qualifications, Witte testified that she had received a doctorate in clinical psychology from Rutgers University, where her major training focus was substance abuse, primarily alcoholism. Her postgraduate clinical internship focused on depression, and she worked at the substance abuse treatment unit of the Yale Medical School department of psychology. Witte testified that since 1989, her private practice has specialized in “dual diagnosis” patients, alcoholism and chronic pain, along with depression. She indicated that because her practice is well known for chronic pain work, she has had considerable experience with chronic pain patients. She further indicated that she has extensive clinical experience with suicides.

The commissioner found that Witte did the most thorough review of the entire body of evidence concerning the life of the decedent. Witte opined, on the basis of her review of all of the records, testimony at earlier hearings, the histories provided to each of the decedent’s medical providers, and the decedent’s personal journal, that the decedent’s 1987 injury was not a substantial factor in causing his suicide. She concluded that alcohol abuse was a life threatening problem for the decedent long before his employment with the defendant.

Regarding the decedent’s drinking problem, Witte noted that the decedent had a twenty-eight year history of alcohol abuse. Witte found from the records that the decedent reported his father to be an alcoholic and that his mother had a drinking problem. Witte concluded that a family history of alcohol abuse is a very clear predisposing factor for later alcoholism, either because of genetics, learned behaviors or both. She further testified that alcoholism is a significant risk factor for suicide and that middle-aged alcoholic males are particularly prone to suicide. According to Witte, a review of the decedent’s various medical records* * indicated stress from his son’s illness, tremendous work responsibilities and a stressful home life as the reasons for the decedent’s increased drinking.

The commissioner found that in October, 1989, the plaintiff and her son arranged a meeting with the decedent’s supervisor, John Buffa, to discuss the decedent’s alcohol problem. After meeting with the plaintiff, Buffa learned of the decedent’s absences and operating errors. Buffa suspended the decedent on October 24, 1989, and requested that the decedent seek substance abuse counseling. The defendant thereafter placed the decedent on a continuing drug and alcohol screening program. The commissioner accepted Witte’s testimony that the plaintiffs meeting with Buffa created a crisis for the decedent.

On March 9,1990, the decedent met with a counselor at the Southern Connecticut Substance Abuse Center. According to Witte, the records from the March 9,1990 visit, revealed the decedent’s panic, and the fact that he threatened suicide and harm to others that day. Two days later, on March 11, 1990, the decedent threatened the plaintiff with a kitchen knife and the police were called to the home.

Witte defined chronic pain as “pain which is experienced daily on a continuing basis for a period of time (for many months or years) where there is an underlying medical condition.” She indicated that a chronic pain patient generally cannot work full-time on a regular basis because the pain is disabling by definition. Witte reviewed the decedent’s journal and indicated that it did not focus on physical pain or possible surgery. The decedent’s journal revealed, rather, that for the last six months of his life, the decedent was frustrated, angry and preoccupied with perceived conflicts with supervisors, equipment malfunctions and other work problems. The commissioner accepted Witte’s testimony that the decedent’s performance problems during 1993 were very threatening to the decedent and made him feel vulnerable. Witte concluded that the decedent did not have continuous pain from the time of his work accident in 1987 to the end of his life. She further indicated that there was no evidence that the decedent was psychotic when he committed suicide.

It was within the commissioner’s discretion to credit all, part or none of the expert testimony presented at the hearing. O’Reilly v. General Dynamics Corp., supra, 52 Conn. App. 819. The board did not abuse its discretion in affirming the commissioner’s decision to allow Witte to testify regarding the claimed causal relationship between the decedent’s 1987 injury and his suicide, and to rely on that testimony.

II

The plaintiff next argues that the commissioner’s decision should be reversed because she failed to apply the substantial contributing factor test. We disagree with the plaintiffs characterization of the commissioner’s decision, and conclude that the commissioner applied the proper standard.

We begin by noting that traditional concepts of proximate cause furnish the appropriate analysis for determining causation in workers’ compensation cases. See McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118, 527 A.2d 664 (1987); see also Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). “[T]he test for determining whether particular conduct is a proximate cause of an injury [is] whether it was a substantial factor in producing the result.” (Internal quotation marks omitted.) Paternostro v. Arborio Corp., 56 Conn. App. 215, 222, 742 A.2d 409 (1999), cert. denied, 252 Conn. 928, 746 A.2d 788 (2000).

The plaintiff refers to the commissioner’s statement that “the medical evidence and treatment records submitted demonstrated that the substantial continued lifelong alcohol abuse [by the decedent] was the significant contributing factor in his alleged depression and/or psychiatric condition, and ultimately resulted in his suicide . . . .” (Emphasis added.) According to the plaintiff, this conclusion implies that only one factor can be the significant factor. The plaintiff contends that she did not need to prove that chronic pain was the sole factor in the suicide, only that it was a substantial factor. In this regard, the plaintiff argues that a finding that alcoholism played a role in the decedent’s suicide did not preclude a finding that his 1987 injury and resulting chronic pain were also substantial factors.

A review of the commissioner’s decision reveals that she properly applied the substantial factor test in con-eluding that the decedent’s lifelong battle with alcoholism and depression rather than his 1987 injury, caused the decedent to commit suicide. Although the plaintiff argues that the commissioner applied a standard requiring her to prove that the employment was the sole factor in the decedent’s suicide, rather than a substantial contributing factor in the suicide, the decision clearly indicates that this is not the case. At the outset of the decision, the commissioner phrased the issue before her by referring to the substantial factor test. The commissioner later stated in the decision that “[t]he work-related injuries and the sequelae of those injuries, including the alleged chronic pain, were not substantial contributing factors in [the decedent’s] death . . . .” (Emphasis added.) The commissioner further indicated that “[the decedent’s] 1987 compensable work injury, subsequent surgeries, sequelae of the surgeries or the alleged chronic pain was notin any way a contributing factor in that suicide . . . .” (Emphasis added.) Contrary to the plaintiffs argument, she was not required to prove that the 1987 injury and the resulting chronic pain was the sole factor in the decedent’s suicide.

Ill

The plaintiff next argues that the commissioner failed to apply the preponderance of the evidence standard. The plaintiff again refers to the commissioner’s statement that “the evidence presented also fail[s] to establish by a preponderance of evidence that but for his work-related injury [the decedent] would not have committed suicide . . . .” The plaintiff again argues that she was required to prove only that the decedent’s injury was a substantial contributing factor in his suicide, and that she did not need to negate all other possibilities. We disagree with the plaintiffs characterization of the commissioner’s decision.

As previously discussed, the commissioner properly applied the substantial contributing factor test. The commissioner also properly applied the preponderance of the evidence standard. The commissioner stated that the plaintiff “failed to prove by a preponderance of evidence that the decedent . . . suffered from a psychiatric condition and/or chronic pain syndrome which was causally related to the compensable July 24, 1987 work injury . . . .” The commissioner further found that “the evidence in this case failed to establish by a preponderance of evidence that the suicide of [the decedent] arose out of and in the course of his employment . . . .” Contrary to the plaintiffs argument, the commissioner did not require her to negate all other possibilities.

IV

We consider the plaintiffs final three arguments together because they all involve challenges to the commissioner’s findings of fact. Specifically, the plaintiff argues that the decision of the commissioner includes findings unsupported by the facts. She also contends that the commissioner failed to include uncontroverted material facts in the decision. Finally, the plaintiff argues that the commissioner’s conclusions cannot stand because they are inconsistent with the subordinate findings and underlying facts. We disagree.

“[T]he power and duty of determining the facts rests on the commissioner, the trier of facts.” (Internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). “Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Paternostro v. Arborio Corp., supra, 56 Conn. App. 219. “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Internal quotation marks omitted.) Id.

The plaintiff argues that the commissioner’s findings of fact regarding the decedent’s histoiy of alcohol abuse, complaints of pain, the weight of the witnesses’ testimony, the possible relationship of the decedent’s drinking to his death and work performance, and the defendant’s response to the decedent’s 1987 injury claim are not supported by the evidence. She further argues that certain material, undisputed facts that were not included in the commissioner’s decision establish that the decedent suffered from chronic pain resulting from the 1987 injury, which contributed to his depression and suicide. She additionally contends that the pain was a substantial contributing factor in the decedent’s suicide and that Witte did not qualify as an expert in the case.

The evidence presented to the commissioner, as previously indicated, supports the commissioner’s finding that the decedent’s suicide was the result of his alcoholism and depression, rather than his 1987 injury. This conclusion was properly based on inferences reasonably drawn from the subordinate facts and was a correct application of the law. See id., 222. The board, therefore, properly affirmed the commissioner’s decision in this regard.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiff raises three arguments related to the commissioner’s findings of fact. Specifically, she argues that the decision of the commissioner should be reversed because (1) if includes findings unsupported by the facts, (2) the commissioner failed to include uneontroverted material facts in the finding and (3) the commissioner made inferences inconsistent with subordinate facts, and, therefore, the conclusions of the commissioner cannot stand. These issues will be considered together in part IV of the opinion.

       The plaintiff also produced documentary evidence, including medical records of the decedent and testimony from several other nonexpert witnesses.

       Kosten is a professor of psychiatry and the director of the division of substance abuse at Yale University.

       Witte testified as follows during her voir dire examination: “Clinically, [suicide is] something that I have to deal with all the time. I see depressed patients. I see substance abusing patients. I see chronic pain patients. It’s something that—I deal with suicide crises on a weekly basis. It’s something I have extensive clinical experience with as a result of the patient populations I see.”

       The decedent was admitted at different times in his life to the Stonehaven detoxification facility, Park City Hospital and the Elmcrest Psychiatric Institute.

       In 1987, the decedent learned that his son had cancer.

       Specifically, the decision states that “[t]he issues in this case are (a) whether [the decedent’s] compensable injury to his back and neck of July 24, 1987, and the alleged sequelae of that accident, including cervical and lumbar spine fusions, alleged chronic pain and depression were substantial contributing factors in [the decedent’s] death by suicide on September 28, 1993; and (b) whether the [plaintiff], Jeanine Dixon, [the decedent’s] dependent widow, is entitled to death benefits that flow therefrom. ” (Emphasis added.)

       In reaching this conclusion, we are aware of the commissioner’s further statement that “the evidence presented also failed to establish by a preponderance of evidence that but for his work-related injury [the decedent] would not have committed suicide . . . .” This statement is consistent with Wilder v. Russell Library Co., 107 Conn. 56, 139 A. 644 (1927), in which our Supreme Court considered the factors for the commissioner to consider in determining whether a suicide is compensable.
      The court in Wilder stated that “[w]here such a claim is made, a commissioner must give careful consideration to all the circumstances in evidence before him, not merely those surrounding the employment, but also those which have to do with any hereditary predisposition to mental disorder on the part of the employee, with his personal characteristics, and with his conditions of life outside the employment. Compensation is not to be awarded unless it is properly found that the insanity is traceable to the employment or its conditions as the direct causal agency which produced it, and that, had it not been for that employment or those conditions, it would not have occurred.” Id., 62.
      We conclude that although the commissioner referred to the Wilder “but for” test, when the decision is read as a whole, the standard that the commissioner actually applied was the substantial contributing factor test.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. JEREMIAH SAMUEL, JR.
    (AC 18658)
    Lavery, Mihalakos and Daly, Js.
    Argued December 7, 1999
    officially released March 21, 2000

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Toni Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Amy Sedensky, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

This appeal arises from a judgment of revocation of probation after a hearing held pursuant to General Statutes § 53a-32 (a). The defendant, Jeremiah Samuel, Jr., claims that the trial court improperly (1) found him to be in violation of probation because there was insufficient evidence of a violation and (2) found that his conduct constituted “threatening” as defined in General Statutes § 53a-62. We affirm the judgment of the trial court.

The following facts, adduced at the probation hearing, are relevant to this appeal. On February 20,1998, the defendant pleaded guilty to assault in the third degree in violation of General Statutes § 53a-61, threatening in violation of § 53a-62 and reckless endangerment in violation of General Statutes § 53a-63. He was sentenced to a total effective sentence of three years, execution suspended, and two years probation. The special conditions of probation were that he attend domestic violence counseling sessions and not pose threats or assaults toward the victim, Mario Biggs.

On March 18, 1998, the defendant was arrested after banging on the door of Biggs’ home, trying to get in the house through the windows when she refused him access, and subsequently throwing objects through the rear passenger side window and back windshield of a motor vehicle owned by Biggs’ Mend, Eric Torres. The defendant also was accused of crashing his car into the right front area of Biggs’ vehicle. The defendant was charged with criminal mischief in the first degree in violation of General Statutes § 53a-115, reckless driving in violation of General Statutes § 14-222, criminal trespass in the third degree in violation of General Statutes § 53a-109 and breach of the peace in violation of General Statutes § 53a-181. Thereafter, the defendant was charged with violating his probation based on the March 18, 1998 arrest.

The following testimony was adduced at trial. On March 18, 1998, the defendant went shopping with Biggs, by whom he has two children. They later returned to her home, and the defendant then went out again. Upon his return, he observed Torres’ car outside the apartment building and, upon entry, found Biggs and Torres in bed. The defendant yelled and cursed at Torres, then left the apartment and got into his car to leave. The defendant was followed outside by Torres, who hit the rear passenger window of the defendant’s vehicle with a baseball bat. In trying to avoid further blows, the defendant swerved and crashed his car into Torres’ vehicle.

Thereafter, as Torres was going back inside the residence, the defendant got out of his car, threw an object through the rear passenger side window of Torres’ car and left. Upon his return shortly thereafter, the defendant threw another object at Torres’ car, this one through the back windshield. The defendant then left the scene again, and later telephoned Biggs and tried to apologize to her and to ask her “why I seen what I seen.”

The court found that the defendant’s actions constituted breach of the peace and criminal mischief, as well as a threat against Biggs, and revoked his probation and imposed a sentence of thirty-three months. This appeal followed.

The defendant claims first that the court improperly found that he violated the terms of his probation because the state did not allege that he had threatened Biggs and did not prove by a fair preponderance of the evidence that he violated the conditions of probation in the manner alleged. The defendant argues that the state did not proceed on the theory that he threatened Biggs, and so the court found improperly that the defendant violated his probation for reasons “not stated in the four comers of the affidavit and notice.” We disagree.

To support a finding of probation violation, “the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his . . . probation.” State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... A fact is more probable than not when it is supported by a fair preponderance of the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

“[U]nder § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf. General Statutes § 53-32 (a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. General Statutes § 53a-32 (b). In making this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) ([a] defendant who seeks to reverse the exercise of judicial discretion, assumes a heavy burden). State v. Davis, [supra, 229 Conn. 289-90].” (Internal quotation marks omitted.) State v. Treat, 38 Conn. App. 762, 766-67, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995).

“A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation . . . rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. . . . In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” (Citations omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999).

Here, at the defendant’s violation of probation hearing, the state argued that it had proven by a fair preponderance of the evidence that the defendant had violated his probation, “[specifically, that the defendant violated the laws of Connecticut while on probation. The state’s position is that the defendant committed on March 18, 1998, a criminal mischief in the third degree, criminal trespass in the first degree, disorderly conduct and breach of [the] peace.” The defendant claims that because the state’s position did not include an allegation of threatening, the court determined improperly that he had violated his probation based on the alleged threatening.

The notice to appear and complaint state specifically: “The police arrested the offender and charged him with criminal mischief [in the first degree], reckless driving, criminal trespass [in the third degree] and breach of [the] peace, violating the terms of his probation.” Although the defendant accurately points out that the state did not include threatening as a reason for proceeding with the revocation, in promulgating his claim, the defendant seems to ignore the fact that his actions were not only found by the court to have constituted threatening, but also breach of the peace and criminal mischief.

In its decision, the court stated: “Under all the facts and circumstances, the state has proven its case by [a] preponderance of the evidence. . . . [T]he defendant acted in a threatening manner toward the victim, Ms. Biggs, and ... he also at [a] minimum breached the peace . . . and [committed] criminal mischief because he damaged the property of another.” (Emphasis added.)

General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . .” “ ‘Violent’ is defined as ‘characterized by extreme force’ and ‘furious or vehement to the point of being improper, unjust, or illegal.’ Webster, Third New International Dictionary.” State v. Lo Sacco, 12 Conn. App. 481, 490, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). It is reasonable to conclude that throwing an object, by the defendant’s own characterization, a brick, through a car window, is violent behavior. It was, therefore, reasonable for the court to conclude that the defendant had engaged in action constituting breach of the peace. This finding was supported by the defendant’s own testimony in the revocation hearing. Applying the clearly erroneous standard review to the record before us, we conclude that on the basis of the evidence presented at the hearing, the court reasonably could have found, by a preponderance of the evidence, that the defendant violated his probation by engaging in breach of the peace and criminal mischief and, thus, violated the criminal laws of the state of Connecticut. Because we have so determined, we do not need to address the defendant’s argument that he was not afforded adequate notice that he faced probation revocation on the grounds of threatening. We conclude, therefore, that the court’s finding of a violation of probation is not clearly erroneous and that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation ....’'

       General Statutes § 53a-62 (a) provides: “A person is guilty of threatening when (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.”

       It is unclear what the object was because it is referred to in the record both as a cinder block and as a brick.


author: DUPONT, J.

text:
    GRACE W. PERKINS v. ARTHUR FASIG ET AL.
    (AC 18612)
    Schaller, Spear and Dupont, Js.

      Argued November 1, 1999
    officially released March 28, 2000

      Douglas J. Lewis, for the appellants (defendant Terri-Ann Fasig McLaughlin et al.).

      Michael R. Kaufman, with whom was Marvin Borofsky, for the appellant (plaintiff).
   Opinion

DUPONT, J.

The primary issue of this appeal is whether the defendants Terri-Ann Fasig McLaughlin and Cheryl Mollica have implied easements over a portion of a roadway owned by the plaintiff. The plaintiff, Grace W. Perkins, brought this action to quiet title and to enjoin permanently all of the defendants from passing over a portion of the plaintiffs land known as Spinning Wheel Lane in New Fairfield. The plaintiff also claimed adverse possession of another portion of Spinning Wheel Lane owned by the defendant Arthur Fasig. The trial court rendered judgment (1) granting the plaintiff ownership of that portion of Spinning Wheel Lane claimed by her in her complaint,* and enjoining all of the defendants from passing and repassing over that portion of Spinning Wheel Lane, and (2) for the defendant Arthur Fasig as to the plaintiffs adverse possession claim. The defendants filed a counterclaim to establish and enforce their claims of easements over the portion of Spinning Wheel Lane owned by the plaintiff. The court rendered judgment for the plaintiff on the defendants’ counterclaim. The defendants appeal from the failure of the court to conclude that they have easements by implication.

The court relied on Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 464 A.2d 26 (1983), and held that because, at the time of the conveyances to the defendants, the defendants’ grantor did not have title to the subservient estate, namely the contested portion of Spinning Wheel Lane, the defendants could not acquire any easement over it. Thus, the court correctly applied the unity of title rule as mandated by Stankiewicz, which was the law at the time of the decision in this case.

The Stankiewicz case was decided in 1983 and relies on Curtin v. Franchetti, 156 Conn. 387, 242 A.2d 725 (1968). Our Supreme Court on August 10,1999, decided Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 144-45, 735 A.2d 798 (1999) (en banc), which changed the decisional law established in Stankiewicz by abandoning the unity of title doctrine.

The property of both the plaintiff and the defendants was once a single parcel owned by Charles B. Carlson and Mabel F. Carlson (Carlsons). On May 23, 1952, a map of the parcel, subdividing the land into thirty-five parcels, was recorded in the town clerk’s office in New Fairfield. The map showed three proposed roads, one of which was Spinning Wheel Lane, all of which would intersect with Dick Finn Road. The plaintiff owns lots 16 and 17, and the defendants own lots 34 and 35, as shown on that map.

The plaintiff acquired lot 16 in 1960 and lot 17 in 1976. The defendants acquired their lots in May, 1992. The court found that the plaintiff obtained a fee interest in lot 17 and a fee interest in that portion of Spinning Wheel Lane in dispute, and that she owned both the lot and the roadway at the time the defendants purchased their lots.

We must first decide whether Bolán may be applied retroactively. Bolán was decided after the court in the present case rendered judgment and after the appeal was taken and the briefs filed, but before any appellate judgment had been rendered.

Judgments rendered in decisions that are not limited by their terms to prospective application in other cases usually are applied retroactively to other cases pending at the time. Marone v. Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998). The issue of retroactivity of decisional law is a question of policy to be decided by a state’s Supreme Court, and may be decided by the policy consideration of whether litigants could be deemed to have relied on past precedent or whether the “new” resolution of an “old” issue was foreshadowed, or whether equity, given the particular facts, requires a prospective application only. See id.; Amodio v. Amodio, 56 Conn. App. 459, 472-73, 743 A.2d 1135 (2000); Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 622-25, 563 N.W.2d 154 (1997); 5 Am. Jur. 2d, Appellate Review § 790 (1995).

As is noted in Bolán, the Supreme Court had hinted, in cases decided after Stankiewicz, that the court might abandon the unity of title doctrine. See Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 829, 717 A.2d 1232 (1998); Branch v. Occhionero, 239 Conn. 199, 202 n.4, 681 A.2d 306 (1996); Carbone v. Vigliotti, 222 Conn. 216, 223-24, 610 A.2d 565 (1992); Ozyck v. D'Atri, 206 Conn. 473, 479, 538 A.2d 697 (1988). Because Bolan was foreshadowed by these cases, there is good reason to conform to the general rule that allows Bolán to be applied retroactively. See State v. Payton, 8 Conn. App. 345, 350, 512 A.2d 976 (1986).

The present case is pending and lacks a final appellate judgment until such time as this court and the Supreme Court, should a petition for certification be granted, affirm or reverse the trial court’s judgment. We conclude, on the basis of factors present here, that we should apply Bolán retroactively and determine whether the defendants have easements as claimed, unfettered by the application of the doctrine of unity of title. See Marone v. Waterbury, supra, 244 Conn. 10-11. The Bolan court, having rejected the unity of title doctrine, then decided whether an easement existed based on the intent of the common grantor as manifested in the relevant deeds and maps.

We, therefore, next determine whether there was an intent to establish easements. We do so by an examination of the deeds, maps and recorded instruments introduced as evidence. Intent as expressed in deeds and other recorded documents is a matter of law. Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989); Grady v. Schmitz, 16 Conn. App. 292, 295-96, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988). This court, therefore, can decide whether the documents here show an intent to grant easements to the defendants without the necessity of remanding the question to the trial court.

Whitton v. Clark, 112 Conn. 28, 151 A. 305 (1930), is instructive in deciding the question of whether the defendants have a right to the easements because that portion of Spinning Wheel Lane owned by the plaintiff must be kept open for their use. That case refers to the “well settled” law that “where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands.” Id., 32. If a grantor promulgates a general plan for the development of a tract and the plan designates streets by which the lots on the plan may be reached, the lot owners have an enforceable right to use the street to reach their lots. Id., 35. The Whitton court states, “[h]ere the test must be the intention of the owner in creating the restrictions upon any lot to make the benefit of them available not to himself but to the owners of the other lots in the tract.” Id., 36.

The plaintiffs predecessors in title and the original owners of the thirty-five parcels of land sold lots in the development by deeds that referred to the 1952 map and referred to recorded, revised restrictions dated January 22, 1954. The 1952 map shows that lots 34 and 35, now owned by the defendants, do not front on Spinning Wheel Lane but on a “proposed road” that adjoins Spinning Wheel Lane. The lots are inaccessible to any public road without an easement to pass and repass over the proposed road and Spinning Wheel Lane. The recorded restrictions dated April 3, 1953, and the recorded, revised restrictions dated January 22, 1954, clearly relate to the sale of building lots for single-family residences. Such use would be impossible if a single-family dwelling did not have access to a roadway as shown on the map. The 1954 revised restrictions state that the grantors, the Carlsons, reseive the right to close any streets, lanes or trails as shown on the 1952 map, “providing said streets, lanes or trails are not ones upon which the plot to be conveyed has frontage.” A deed from the Carlsons, the original developers, to the plaintiffs predecessor in title states that the conveyance is subject to the revised restrictions dated January 22, 1954. The restrictions predate the conveyances to the plaintiff, and the plaintiff took title subject to the restrictions. The quoted language clearly implies that plots to be conveyed in the future with frontage on a street, lane or trail cannot be prevented from passing over such streets, lanes or trails, as shown on the 1952 map. Because the language establishes intent as a matter of law, we need not remand the case to the trial court. We have before us all of the documents necessary for our determination and which would be before the trial court on a remand.

The defendants were not given express easements by deed over Spinning Wheel Lane. We conclude, however, that they have implied easements to pass and repass over that portion of the plaintiffs land known as Spinning Wheel Lane. The intent that they enjoy such easements can be implied from the maps, deeds and other recorded instruments submitted into evidence. “There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate” Kenny v. Dwyer, 16 Conn. App. 58, 64, 546 A.2d 937, cert. denied, 209 Conn. 815, 550 A.2d 1084 (1988); see also Ballentine’s Law Dictionary (3d Ed. 1969) p. 569. The recorded instruments in this case manifest an intent to grant an easement necessary for the beneficial use and enjoyment of the defendants’ property, otherwise landlocked.

The Bolán court, after deciding that the urdty of title doctrine should no longer be used in Connecticut to prevent the creation of an easement when intended by the parties, next decided that the deeds and maps accompanying the deeds in that case manifested an intent to create an easement. That court then ordered a new trial, rather than decide itself the extent and nature of the easement. Although the intent of a grantor to create an easement as expressed in deeds, maps and recorded instruments is a question of law, those documents must be considered in light of the surrounding circumstances to determine the nature and extent of the easement. See Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 142-47. Although it is not clear whether the parties are at issue over the nature and extent of the easements, the surrounding circumstances here are likely to require findings of fact that we, as an appellate court, should not make.

The judgment on the plaintiffs complaint is reversed only as to the injunction issued against the defendants Terri-Ann Fasig McLaughlin and Cheryl Mollica; the judgment on the counterclaim denying the claims by the defendants Terri-Ann Fasig McLaughlin and Cheryl Mollica for easements is reversed and the case is remanded with direction to render judgment finding easements by implication in favor of the defendants Terri-Ann Fasig McLaughlin and Cheryl Mollica and for further proceedings to determine the nature and extent of those easements.

In this opinion the other judges concurred.

       Arthur Fasig also was a defendant in this action. He did not claim an easement by implication over Spinning Wheel Lane in either his counterclaim at trial or in his brief to this court, nor did he seek an easement as relief in his counterclaim. According to the defendants’ brief, the appeal concerns “the failure of the court to find that [the defendants] possessed an easement by implication over [the] plaintiffs portion of Spinning Wheel Lane.” The trial court held that the plaintiff has title to that portion of Spinning Wheel Lane involved in the parties’ dispute, and the defendant Arthur Fasig has not appealed from that judgment. As used in this opinion, the word defendants refers to Terri-Ann Fasig McLaughlin and Cheryl Mollica, except as otherwise indicated.

       The corrected judgment file states in relevant part: “The plaintiff, Grace W. Perkins, is the owner in fee simple, of lot nos. 16 and 17 as shown on map no. 252 on record in the office of the town clerk of the town of New Fairfield (‘hereinafter map no. 252’), together with a portion of the roadway known as Spinning Wheel Lane bounding on the said lots nos. 16 and 17, which portion of said roadway is bounded and described as follows: ‘Starting at a point on the southerly side line of lot no. 17 distant 50 feet from the dividing line between lot no. 16 and 17 and running a southerly direction to a point in the middle of the north line of lot no. 18, thence easterly along the boundary lines of lots nos. 18, 31 and 32 (being also the line of said roadway) to the dividing line between lots nos. 32 and 34, thence in a westerly direction to the point of intersection of the northerly and easterly side lines of lot no. 17, thence along the easterly and southerly lines of said lot no. 17 to the point or place of beginning.’ All references to lot nos. as aforesaid are to lots shown on map no. 252.
      “The aforesaid portion of Spinning Wheel Lane found to be owned in fee simple by the plaintiff is further shown as Parcel X on a certain map entitled ‘Survey of Property Prepared for Grace W. Perkins, Dick Finn Road, Town of New Fairfield,’ Dated November 18, 1992, Scale 1” = 30’, prepared by Paul A. Hiro, Licensed Land Surveyor, a copy of which is attached hereto as Exhibit ‘A.’”

       The plaintiff has not appealed from that portion of the judgment for the defendant Arthur Fasig.

        Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 135, involved a parcel that would have been landlocked without an easement over other land. Although the case speaks of an “access easement,” there is nothing in the decision to indicate that the abandonment of the unity of title rule applies only to inaccessible land, as opposed to land that is not landlocked but reachable by passing and repassing over subservient land, as well as by other roadways.


text:
    GEORGE M. MANDES v. ROBERT GODIKSEN ET AL.
    (AC 18532)
    Landau, Spear and Dupont, Js.

      Argued December 9, 1999
    officially released March 28, 2000

      Kenneth J. Bartschi, with whom were Wesley W. Horton and Gerald E. Farrell, Jr., and, on the brief, Gerald E. Farrell, Sr., and Allison Wood, certified legal intern, for the appellant (plaintiff).

      Geraldine Battistoli, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff, George M. Mandes, brought this action (1) to quiet title, (2) for slander of title pursuant to General Statutes § 47-33j and (3) for damages. The defendants counterclaimed, also seeking to quiet title. The dispute of the parties centers about the existence and extent of certain easements over the plaintiffs property. The court rendered judgment, which, in effect, quieted title in the plaintiff, but construed deed reservations and rights-of-way over the plaintiffs land in favor of the defendants. No damages were awarded to the defendants or to the plaintiff.

This plaintiffs appeal solely concerns easements over the plaintiffs land. There is no dispute as to the plaintiffs title in fee simple to his deeded parcels. The court rendered judgment that the defendants have (1) a right-of-way to pass and repass to the beach adjoining Long Island Sound over a portion of the plaintiffs land, namely a parcel seven and one-half feet wide and 110 feet long located at the easternmost seven and one-half feet of the plaintiffs land, (2) an easement consisting of beach rights to the entire beach area fronting the plaintiffs land and fronting a concrete patio immediately adjacent to the plaintiffs dwelling, (3) an easement to use the patio area lying to the south of and immediately adjacent to the plaintiffs dwelling, and (4) the right to use two sets of steps leading to the beach, one of which is located at the end of the seven and one-half foot right-of-way and the other, approximately in the middle of the concrete patio. The court ordered and described certain other conditions and obligations to implement its judgment.

The defendants have not appealed from any of the court’s orders or its judgment. The plaintiff claims that the trial court should not have concluded that (1) the defendants have deeded rights to use the patio on the plaintiffs land, (2) the defendants have the right to use the plaintiffs beach and (3) the unity of title doctrine should not be applied. We need to discuss the first two claims only.

“Intent as expressed in deeds and other recorded documents is a matter of law. Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989); Grady v. Schmitz, 16 Conn. App. 292, 295-96, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988).” Perkins v. Fasig, 57 Conn. App. 71, 76, A.2d (2000). If, after a plenary review, an appellate court concludes that deeded easements exist, their nature and extent usually must be decided by a trial court, and ordinarily a remand is required for a finding of relevant facts to establish their boundaries. See Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 146-47, 735 A.2d 798 (1999). Although the intent to create an easement by recorded instruments is a question of law, the deeds, maps and recorded instruments that created the easement must be considered in light of the surrounding circumstances to determine the nature and extent of the easement. Perkins v. Fasig, supra, 76. In the present case, however, if we determine that the easements exist, no remand would be necessary because the trial court has already defined the precise limits of the easements. Unless the facts that support those limits were improperly found, without supporting evidence, the judgment of the trial court should be affirmed.

The question to be determined here is whether there was an intent as expressed in the plaintiffs and the defendants’ chains of title to establish the easements as they were found to exist by the trial court. We do so by an examination of the deeds, the map referenced in the plaintiffs deed and the recorded instruments that appear in the chain of title to the particular parcel of land. Powers v. Olson, 252 Conn. 98, 108, 742 A.2d 799 (2000); Perkins v. Fasig, supra, 57 Conn. App. 76. We must also examine the facts found by the court as relevant to the establishment of the particular dimensions of the easements.

The plaintiff obtained title to premises known as 7 Pepperidge Avenue in the town of Westbrook by two deeds, a warranty and a quitclaim, both dated May 22, 1991. The warranty deed contained the following language: “Together with and subject to the reservations, restrictions and limitations as to use as are set forth in a certain quit claim deed dated January 8, 1948 . . . .” The quitclaim deed referenced in the plaintiffs warranty deed states that the owners of lots nos. 23, 26, 27, 28, 30, 31 and 43 on a map of Seaside Park, Westbrook, on file in the office of the town clerk of Westbrook, have an easement over a “strip of land 7 1/2 feet wide located along the eastern boundary of the premises conveyed for its entire depth.” The eastern boundary of the plaintiffs land as described in his warranty deed is 110 feet long. The defendants are the owners, successors, heirs or assigns of the lots named in the 1948 deed, as well as being the prior owners, successors, heirs or assigns of the land now owned by the plaintiff. The language of the quitclaim deed also states that the grantors reserve for themselves, “their heirs and assigns,” and for the “owners, families and guests occupying the houses of the lots or premises” (lots nos. 23, 26, 27, 28, 30, 31 and 43) “the right to use in common with [the grantees], their heirs and assigns, for all purposes which owners, tenants, guests, bathers and others would use land adjacent to Long Island Sound, a strip of land eighteen (18) feet ten (10) inches in width and forty (40) feet in length lying immediately in front of the dwelling herein conveyed [the plaintiffs dwelling], the southeast comer of which is one hundred and fifty (150) feet from the northeast comer of said premises.” (Emphasis added.) From these deeds and the map of Seaside Park, the trial court concluded that the defendants possessed deeded easements to use portions of the plaintiffs land.

The trial court also found certain facts that were relevant to its determination of the location and parameters of the easements. The dwelling on the subject property was damaged by a 1938 hurricane. In 1939, the predecessors in title to the defendants and some of the defendants acquired their lots. They also obtained title to the land now owned by the plaintiff on July 10, 1939. They enjoyed the fronting beach from 1939 to 1948. In 1948, the defendants and their predecessors in title bid among themselves on a sale of the subject property, with the highest bidders, Peter S. Márchese and Josephine Márchese, taking title to the land now owned by the plaintiff. The trial court found that these grantors “anticipated and intended that the deed to the successful bidder would reserve to the grantors and certain lot owners [not fronting on Long Island Sound] beach rights, the so-called patio rights and the seven and one-half foot right-of-way.” The trial court found that “prior to the plaintiff acquiring [the land in question], the dwelling was remodeled, with the result that both the porches on the first and second stories were closed in and are now part of the interior dwelling spaces in said cottage.

“As a result of the remodeling, the interior portions of the cottage have been extended so that the lower-story porch no longer lunction[s] as a buffer between the interior of the cottage and the patio easement. Obviously, such alterations have resulted in a closer proximity between the living quarters of the cottage and the easement.”

Other evidence showed that the patio area was used for the storage of the defendants’ chairs, bicycles and boats. Beach usage by the defendants and their predecessors was shown in numerous photographs. The trial court concluded that the quitclaim deed of 1948 reserved “beach rights lying in front of the patio” and concluded that the deed granted rights in the plaintiffs patio, namely land eighteen feet, ten inches in width and forty feet in length lying immediately in front of the dwelling.

The plaintiff does not attack the finding of the court that the defendants have a seven and one-half foot wide easement along the easternmost boundary of the plaintiffs land. He argues, however, that the length of 150 feet as provided in the quitclaim deed of 1948 was not a scrivener’s error, as determined by the trial court, but an intent to convey an easement in littoral rights. The plaintiff attempts to show that the defendants and their predecessors in title were not thereby reserving an easement in the patio, but reserving the right to exercise littoral rights for forty feet beyond its deeded boundary. The plaintiff claims that the eighteen foot, ten inch by forty foot strip of land referred to in the 1948 deed lies in Long Island Sound.

The easement over the seven and one-half foot strip as described in the 1948 deed did not delineate its length, but used the words “for its entire depth.” In addition to this strip, the 1948 deed also reserves the right to use a strip of land eighteen feet, ten inches wide and forty feet long, and describes that land’s southeast boundary as being 150 feet from the northeast comer of the premises conveyed. The plaintiff argues that if the seven and one-half foot strip is in fact 150 feet long, the last forty feet of it would extend beyond 110 feet, namely beyond the southeast corner of the existing patio and the southeast comer of the premises conveyed, beyond the high-water mark of the beach and then into the water of Long Island Sound beyond the low-water mark. The trial court found that the 150 foot dimension was a scrivener’s error and should have been 110 feet, the amount of footage actually conveyed by the grantors in 1948 and actually conveyed to the plaintiff in 1991.

The plaintiff sees nothing unusual in a grantor’s reservation of littoral rights that were not deeded to the grantor or his or her predecessor in title, or in reserving such rights in common with a grantee without naming the rights as such or describing them in any way. The plaintiff explains his argument by first conceding that the grantors could not warrant title to an underwater eighteen foot by forty foot parcel “because it lies in Long Island Sound,” and then stating that because the grantors did not have title to such land, they had to use a quitclaim deed to convey their littoral rights and reserve the rights in common with their grantees. This argument assumes that the grantors intended to reserve littoral rights and could achieve that purpose without specifically, or even impliedly, saying so, a type of silent, unexpressed, “in pectore” reservation of use.

Title to the land between the high and low-water marks is in the state. Matto v. Dan Beard, Inc., 15 Conn. App. 458, 476, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988). The owner of the upland adjoining the high-water mark has the exclusive privilege of wharfing out, erecting piers, the right of accretion, and access to and from the upland, as well as the right to occupy the area in any way that does not interfere with navigation, and may convey those rights separately from the owner’s adjoining land. Id., 480-81. Although the grantors of the 1948 deed had littoral rights and could have quitclaimed them or reserved a right to use them in common with the grantees, no language in the relevant deeds supports that conclusion. To the contrary, the eighteen foot by forty foot parcel is described as land being “immediately in front of the dwelling.” The seven and one-half foot right-of-way is described as running the entire length of the premises conveyed. It is not described as running to beneath the water of Long Island Sound. We affirm the trial court’s determination of the location of the land and its judgment that the defendants have deeded easement rights to use the concrete patio, an area of eighteen feet, ten inches in width and forty feet in length.

The plaintiff also claims that the defendants do not have an easement to use the plaintiffs beach because the operative deed does not mention “beach rights.” The plaintiffs land is described in the deed to him as being bounded on the south by Long Island Sound. Such a boundary is tantamount to ownership of the beach adjoining the upland, from the upland to the high-water mark of the beach. Mihalczo v. Woodmont, 175 Conn. 535, 538, 400 A.2d 270 (1978). The plaintiff agrees in his reply brief that the defendants have the right to use a seven and one-half foot strip of the plaintiffs beach to the high-water mark. The plaintiff claims, however, that the defendants do not have deeded rights to use the entire beach.

The trial court, as a matter of law, held that the reservation of an easement in the 1948 deed was a reservation to use the entire beach area in front of the concrete patio, whatever the dimensions of the beach may be at any particular time. The language of the reservation in the 1948 deed, according to the trial court, is ambiguous.

The language describes the purpose of the easement as being one “for which owners, guests, bathers and others would use land adjacent to Long Island Sound,” and the dimensions of the easement as being “18 [feet] 10 [inches] in width and 40 [feet] in length lying immediately in front of the dwelling on the premises herein conveyed.” Because of the ambiguity, the court relied on an interpretation of the evidence to discern the intent of the parties. It concluded that there was an intent to create an easement over the entire beach because of the use of the entire beach by the defendants and their predecessors prior to the 1991 conveyance to the plaintiff. The defendants and their predecessors in title had title to the plaintiffs property from 1939 to 1948, including the beach, and used the beach as of right as owners until they conveyed it to the plaintiffs predecessors in title in 1948. The court concluded that when the defendants conveyed what is now the plaintiffs land, reserving the use of certain portions, that the defendants must have intended to continue the same use they had enjoyed as owners, one of which was the use of the beach. The court stated that “[i]t is unreasonable to believe that the grantors . . . would give up beach rights, the major reason for their purchase of the property [in 1939] and the purpose for which it was used from its acquisition through the date of conveyance, January 8, 1948, as owners, and to the present day as encumbrances reserved in the deeds.”

One of the stated purposes of the reservation was one for which a bather would use land adjacent to Long Island Sound. Between the patio, to which we have concluded the defendants have an easement, and the water of the Sound is the beach. The beach, not the patio, is primarily the area a bather would use. The easement, however, is described as having approximately the same dimensions as the concrete patio and as being immediately in front of the dwelling. The patio, not the beach, is immediately in front of the dwelling. We, therefore, agree that the language creating the easement is ambiguous.

A deed shall, if possible, be construed to effectuate the intent of the parties. “[I]t is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.” (Internal quotation marks omitted.) Hare v. McClellan, 234 Conn. 581, 593-94, 662 A.2d 1242 (1995). Thus, “if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity.” Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780-81, 687 A.2d 1270 (1997). The review of the court’s construction is plenary. Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992).

Here, the trial court properly considered extrinsic evidence, and we conclude that the court’s construction of intent as expressed in the language of the 1948 deed should not be disturbed. We also agree with the court that the easement to the beach cannot be precisely determined in feet because of the nature of beaches.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants axe Robext Godiksen, William J. Nolan, Constance Milardo Sadlowsld, Barbara S. Gregg, Kevin S. Gregg, Tina Marie McDermott, Frances A. Milardo, Josephine V. Turner, Gary F. Bohm, Alexander D. Puziak, Jams B. Puziak, Anna Ferrara, Florence Uccello and Walter J. Milardo.

       The defendants also sought in the counts of their counterclaim to apply the doctrine of collateral estoppel in connection with the plaintiffs action for slander of title and to apply the principles of adverse possession to establish their easements, rights-of-way or reservations. The trial court impliedly found for the plaintiff as to these claims and for the defendants as to the plaintiffs claim for slander of title. The court held that a prior action involved in the plaintiffs claim for slander of title was a “personal injunction” and ordered the defendants to remove from the land records of the town of Westbrook a stipulation reached in that prior action. Because the trial court found that the defendants acquired deeded rights to the easements claimed by them, it must have rejected their inconsistent claim of adverse possession, or prescriptive rights. The parties have not appealed from any of these rulings or judgments. The defendants have not claimed to have acquired prescriptive easements as an alternate ground for affirmance of the judgment granting them the easements as found by the court. Although the judgment file states that the court found the issues for the defendants, that is not strictly the case, as herein explained.

       The plaintiff does not appeal from this portion of the judgment.

       The right to use the steps is dependent on whether the defendants have deeded rights to use the patio and the beach.

       These conditions and obligations are as follows: “As with all easements, the defendants have the obligation and the duty to maintain said steps. . . . The plaintiff is to clear the seven and one-half foot right-of-way of any and all obstructions for its full length and width. If the plaintiff is required, for safety purposes, to construct a rail at the south and east ends of the patio, [he] shall limit the height and construction of same to the minimum height allowed by the building regulation^] of the town of Westbrook. [If] [t]he plaintiff is required for safety purposes to gate the premises, said gates shall not at any time be locked as to frustrate the free use of the premises by the defendants.”

       Three of the defendants, Alexander D. Puziak, Janis B. Puziak and Gary F. Bohm, would not have been entitled to an easement, even if the relevant deeds and maps evinced an intent to create one, had the doctrine of unity of title been applied. The court, however, refused to apply that doctrine, which at the time was controlling decisional law, deeming it “archaic.” After the court’s judgment, Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999) (en banc), held that the doctrine should be abandoned in cases involving easements; see also Powers v. Olson, 252 Conn. 98, 109, 742 A.2d 799 (2000). We hold that the trial court in the present case was right, not because it was prescient, but because we apply Bolan retroactively. See Perkins v. Fasig, 57 Conn. App. 71, 74-76, A.2d (2000). The three defendants whose predecessors in title did not have an interest in the dominant estate at the time of the conveyance reserving the easements are in the same legal position as the other defendants.
      The plaintiff also argues that a reservation of an easement is different from a grant of an easement. The language in Bolán, however, which the Supreme Court found to have created an easement, was couched in terms of a reservation, as is true in this case. See Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 142.
      Any argument that the easements in question here, as described in Volume 36, pages 289 and 290, of the Westbrook land records, were personal to the grantees named in that deed only, and therefore did not run with the land, must fail. The language of the deed states that the grantors reserve the easement for “themselves, their heirs and assigns.” The general rule is that an easement may be construed as personal only when the deed language fails to contain the words “heirs, successors and/or assigns.” Brown v. Connecticut Light & Power Co., 145 Conn. 290, 298-99, 141 A.2d 634 (1958).

       The trial court, could not, define the footage of the beach because of the nature of beaches, which expand and diminish in width as the sands shift.

       The 1948 deed described the southeast comer of the easement strip as being 150 feet from the northeast comer of the premises conveyed. The trial court concluded that the deed should have described the southeast comer of the premises as being 110 feet from its northeast comer because the grantors only owned 110 feet. A grantor cannot convey a greater title than he or she possesses. Powers v. Olson, supra, 252 Conn. 109 n.6.

       Although the defendants claimed in count two of their counterclaim adverse possession of the seven and one-half foot right-of-way, and of the patio area immediately in front of the plaintiffs dwelling and the steps leading from the patio to the beach, they did not claim adverse possession or a prescriptive easement in the beach itself. We are not concerned, therefore, with the establishment of a prescriptive easement in the beach, although certain facts found by the trial court are factors in the establishment of a prescriptive easement. See Swenson v. Dittner, 183 Conn. 289, 294, 439 A.2d 334 (1981). None of these factors, however, relate to whether the use of the beach was adverse, without which any claim for prescriptive rights must fail; Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 168, 459 A.2d 1021 (1983); unless an ineffective grant by deed established a basis for the finding of an adverse use. Id., 169.