At odds over easement

This easement on the Woodland Regional High School property in Beacon Falls is at the center of a dispute between the town of Beacon Falls and the Region 16 Board of Education. –ELIO GUGLIOTTI

This easement on the Woodland Regional High School property in Beacon Falls is at the center of a dispute between the town of Beacon Falls and the Region 16 Board of Education. –ELIO GUGLIOTTI

BEACON FALLS — The town of Beacon Falls and Region 16 Board of Education have taken opposing stances when it comes to an easement on the Woodland Regional High School property.

The easement is an overgrown path off of Rimmon Hill Road. It’s used by local residents, particularly equestrians, to cut through the school property between the athletic fields to get to Matthies Park, which borders the school land.

The school board, which oversees schools in Beacon Falls and Prospect, is considering blocking access to the easement at the recommendation of its legal counsel. School officials have expressed concerns over the risk of additional liability due to people traversing its land.

Attorney N. Warren Hess III, the board’s counsel, gave his opinion on the matter in a letter sent in January. In the letter, Hess wrote Region 16 would be assuming additional liability if it allowed anyone to pass through the property by horseback or any other means.

“My recommendation is to not allow anyone to pass through Region property by horseback or otherwise. If the board wants to consider the granting of rights to the general public and not accept my recommendation, at a minimum you must contact your insurance advisor for additional input,” Hess wrote.

The town, on the other hand, contends land records give the legal right for residents to pass through the easement.

“From our standpoint, it seems very clear that the town of Beacon Falls retains the legal passage,” First Selectmen Christopher Bielik said.

The easement is used frequently by horseback riders to get to Matthies Park, equestrian and resident Mary Ellen Fernandes said.

Fernandes, who grew up on Rimmon Hill Road, said she’s been riding through the easement for years and well before Region 16 bought the land. She currently keeps her horse at the Hagen property on Rimmon Hill Road, she said, as do several other equestrians.

“There’s more horses in town than people realize,” Fernandes said.

Fernandes said passing through Woodland is a much safer option to get to Matthies Park. She said riding on the road poses a danger to horseback riders as well as people driving.

Bielik concurred, saying if equestrians are forced to ride on the road to get to the park it’s a public safety issue.

Fernandes is also a member of the Parks and Recreation Commission. From the view point of a commissioner, Fernandes said she doesn’t want to see anything that restricts access to town parks.

“I don’t think anyone in town should be limiting access to a town park,” she said.

Region 16 Superintendent of Schools Tim James said the board is taking a subjective approach to the matter and relying on the advice of Hess. He said the board has insurance to cover an incident if someone gets hurt on school property. However, he said, the contour of the land where the easement is is different than the rest of the property. Someone traversing the property through the easement could open the board up to increased liability — particularity if it knows the situation could be an issue.

James said the board isn’t just looking at equestrians, but also has to consider someone using the easement in other means, like on a snowmobile or ATV.

“The board also needs to protect itself,” James said.

School board Chair Donna Cullen said the board is not trying to upset anyone and is looking at the matter as a potential safety issue as well.

“The board wants to do what is best for the Region and the community, and we also have to listen to the advice of our attorney,” Cullen said.

The easement issue first came up late last summer after a landscaper working at the school put up a fence blocking it. The fence, which was subsequently taken down, led horseback riders to question school officials as to why it was put up in the first place.

That was when many on the board learned that equestrians passed through the property.

At the time, the board also felt horses passing through the school could present a health issue as members of the cross country team have to dodge manure during practice, according to officials.

A contingency of local horseback riders presented its case to the board last November.

Resident and horseback rider Patricia Hinman was among those who spoke to the board. In an interview this week, Hinman said those who ride through the property clean up after themselves. She added there are no shoulders along the roads in the area, which makes traveling by road dangerous for equestrians.

Hinman, who turns 76 this year, has been involved in equestrian activities for most of her life. She moved to town in 1968 and along with her husband started the Beacon Falls Ridgerunners 4H Horse Club. These days, Hinman rides purely for recreation and physical therapy.

“We just want to be left alone to do what we’re allowed to do,” Hinman said.

As equestrians presented their case, the board in turn sought the legal advice of Hess.

Although Hess’ letter was received in January, the matter was pushed to the background by more pressing issues — such as the bond for security improvements and the 2014-15 budget.

The matter was set to come up again earlier this month. The agenda for the board’s June 11 meeting listed an item for discussion and possible action on the easement.

Diane Ciano from the Connecticut Horse Council addressed the board at the meeting on behalf of two members of the council’s horse patrol from Beacon Falls. She said members of the patrol work with the state to maintain trials across Connecticut.

“The local equestrians concern is retaining that access to that easement,” Ciano told the board.

Ultimately, the board tabled the item on the easement due to a letter from the town’s land use attorney, Steven Byrne. The letter was forwarded to the board by Bielik.

In the letter, Byrne requested a copy of Hess’ legal opinion to review and asked that the board take no action on the matter at the meeting.

“You should know that if the board does take action to block the use of the easement in anyway, appropriate action, including an injunction, will be taken,” Byrne wrote.

Bielik said the letter was sent to the board because town officials knew it was on the agenda, but didn’t know the board’s intentions.

“We took the steps that were necessary in order to reserve the rights the town has,” Bielik said.

The board discussed Byrne’s letter in executive session. No action was taken following executive session. The two attorneys were asked the review the matter and discuss their opinions, according to officials. The easement was not included on the board’s agenda for Wednesday’s meeting, which was after press time.

The easement appears in land records for the property, but each side interrupts its meaning differently.

The easement dates back to a deed from 1938 when the land was conveyed from Milton Carrington to the Seymour Trust Co. The deed references a strip of land, about 20 feet wide.

“Also conveying a right of way to pass and repass for general purposes on foot, horseback with vehicle over and through other lands of the said grantor along a convenient and agreed location …” the deed reads.

Subsequent deeds all refer back to this deed, including the land record from 1999 when the town sold the land to Region 16. The deed references a right of way over a 20-foot-wide strip of land set forth in a 1956 deed from Carrington to Adele Gomberwicz. The 1956 deed refers back to the one in 1938.

Those who want the easement to remain open point to the deeds as stating clear intent that the easement is available for residents to use.

“It seems pretty clear to us that the town retains a 20-foot easement through the property,” Bielik said.

However, Hess offers a different opinion.

In his letter to the school board, Hess states the easement is an “appurtenant easement.”  “An appurtenant easement provides an owner with additional rights on other land of the grantor and is a benefit to the parcel. An appurtenant easement does not burden a parcel of land by the granting of rights to pass through the subject parcel by third parties or the grantor, in this case, Milton Carrington,” Hess wrote.

Hess wrote the Seymour Trust Co. obtained absolute ownership of the land in 1938 plus the additional right to pass over other land owned by Carrington. No one obtained any rights to pass through the land purchased by Region 16, he continued. This additional right to pass through other land owned by Carrington is currently held by Region 16, the letter states.

The easement is currently open, as the matter remains up in the air. Both sides are hoping for an amiable solution.

“We just want it straightened out, so we’re able to ride without worry,” Hinman said.

James said the board is hoping for a solution that is fair to each side.

“You’d like to hope that this comes to some resolution that could be fair to both,” James said.