Ozyck v. D'Atri

Arthur H. Healey, J.,

concurring. I concur in the result reached by the majority. I do, however, have considerable difficulty with its approach and the rationale that yields that result.

The visceral issue squarely presented to us by the plaintiffs is that the trial court erred when it applied the rule of Curtin v. Franchetti, 156 Conn. 387, 242 A.2d 725 (1968), to find against them.1 The defendants agreed that this was the issue here.2 There is no question that the plaintiffs knew, at trial, on appeal and in argument on appeal, that the rule of Curtin was fatal to their claim when they argued that we overrule Curtin, which recognized the unity of title doctrine.

The rationale of the majority for the result reached can fairly be read as having all but exsanguinated Curtin. This has been done in a case where the result should have been dictated by Curtin, a case involving real property decided less than twenty years ago. It is quite one thing not to adopt the new rule proposed by the plaintiffs because the factual pattern of this case does not quite fit into the factual pattern of those juris*482dictions that have rejected the unity of title doctrine. But it is quite another thing, having sown the seeds of Curtin’s demise, to dispatch the holding of Curtin in the manner which the majority chooses to do so. The suggestion is made that “we have decided to defer any reconsideration of the rule adopted in Curtin until we are presented with an appropriate case . . . .” I submit that simply means that this court will then announce, as the plaintiffs ask in their brief, that “Connecticut should declare the ‘unity of title’ principle dead and buried forever more.” This period of interregnum until the time Curtin is unequivocally overruled is troublesome. It is particularly so because of the signal it sends to those who now may have “interests” in real property that are not cognizable under Curtin but may soon germinate into cognizable interests. If so, what will this do by way of its effect on such properties? Will it start to aid and abet the execution and recording of instruments that in effect create post -Curtin easements?

“ ‘A decision of this court is a controlling precedent until overruled or qualified. Daury v. Ferraro, 180 Conn. 386, 389, 143 A. 630 [1928].’ Herald Publishing Co. v. Bill, 142 Conn. 53, 61-62, 111 A.2d 4 (1955).” Burger & Burger, Inc. v. Murren, 202 Conn. 660, 662, 522 A.2d 812 (1987). We should not overrule one of our earlier decisions “unless the most cogent reasons and inescapable logic require it.” Herald Publishing Co. v. Bill, supra; Cummings v. Tripp, 204 Conn. 67, 76-77, 527 A.2d 230 (1987). We have properly recognized that “ ‘[e]xperienee can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better . . . [t]he adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics. A court, when once convinced that it is in error, is not compelled to follow precedent. Smith v. Allwright, 321 U.S. 649, *483655, 64 S. Ct. 757, 88 L. Ed. 987 [1944].’ Herald Publishing Co. v. Bill, supra.” Cummings v. Tripp, supra, 77. Despite the majority’s statement of deferring any reconsideration of Curtin, its decision does reconsider it; any fair reading of the majority opinion demonstrates that the formal act of overruling Curtin has, at the very least, been deferred. Yet no cogent reason or inescapable logic for doing so is easily detected; however, the harbingers are easily detected. Cf. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988).

The majority’s serious undermining of Curtin raises grave concerns not only as to that eminently desirable and essential doctrine of stare decisis, but it does so in an area of the law that commands particular stability, i.e., real property. While it is always crucial in justifying adherence to precedent to require that those who engage in matters based on the existing law be able to rely on its stability, it is very more much so in cases involving property rights as Curtin does. See State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 381, 97 S. Ct. 582, 50 L. Ed. 2d 550 (1977); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486-87, 44 S. Ct. 621, 68 L. Ed. 1110 (1924); Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951, 960 (9th Cir. 1982); Heyert v. Orange & Rockland Utilities, Inc., 17 N.Y.2d 352, 218 N.E.2d 263, 271 N.Y.S.2d 201 (1966). I recognize that stare decisis is not a rule of law but a matter of judicial policy and that it does not have the same kind of force in each kind of case so that “adherence to or deviation from that general policy may depend upon the kind of case involved, especially the nature of the decision to be rendered that may follow from the overruling of a precedent.”3 See Heyert v. Orange & Rockland Utilities, Inc., *484supra. The reason that stare decisis applies with special force to decisions affecting titles to land is the special reliance that such decisions mandate. They have “become rules of property, and many titles may be injuriously affected by their change.” Minnesota Co. v. National Co., 70 U.S. (3 Wall.) 332, 334, 18 L. Ed. 42 (1866).

The vitality of common law courts to respond to reasoned need for change and not to perpetuate demonstrably archaic views constitutes one of their fundamental strengths in an evolving society. Stare decisis accommodates that rubric. Given the special place of judicial pronunciations on real property in our system for the reasons set out earlier, the issue of the continuing validity of Curtin should be met now—and decisively so.

I, therefore, concur in the result for the reasons stated.

The plaintiffs framed this issue on appeal as follows: “When the trial court applied the ‘Unity of Title’ rule, it was applying an archaic rule rooted in feudal English property law which no longer has any justification in modem real property law inasmuch as it gives full weight and significance to form over substance, ignoring the intent of the parties involved.”

The defendants met the plaintiffs’ statement of the issue by framing their position as follows: “1. Did the trial court err in applying the rule of cases such as Curtin v. Franchetti, 156 Conn. 387, 389 [242 A.2d 725] (1968), and Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 170 [464 A.2d 26] (1983), which holds that no right of way appurtenant can be created without a dominant as well as a servient estate and that the way can only become legally attached to the dominant estate if the same person holds unity of title to both the way and to the dominant estate?”

We have recognized this proposition. For example, in Hartford National Bank & Trust Co. v. Harvey, 143 Conn. 233, 243, 121 A.2d 276 (1956), a *484will construction case, we said: “In the field of testamentary construction, precedents are usually inconclusive, since the same or substantially similar expressions seldom occur in different wills.” In contrast, however, when the case before us involves, as Curtin does, the doctrine of unity of title, obviously the matter is quite the contrary. Curtin v. Franchetti, 156 Conn. 887, 242 A.2d 725 (1968).