Sack Properties, LLC v. Martel Real Estate, LLC ( 2019 )

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SACK PROPERTIES, LLC v. MARTEL REAL
ESTATE, LLC, ET AL.
(AC 41499)
Prescott, Elgo and Bishop, Js.
Syllabus
The plaintiff, the owner of lots 1 and 3 located in a three lot commercial
subdivision, brought this action for, inter alia, quiet title and a declaratory
judgment related to a drainage easement over lot 2 in the subdivision,
which was owned by the defendant M Co. In 1978, the owner of the
subdivision, B, had filed a revised map of the subdivision showing a
drainage right-of-way, which commenced on the easterly line of lot 3,
then down the southerly line of lot 1 and northerly line of lot 2, until
it ran in its entirety down the northeast corner of lot 2. The stormwater
runoff passed under the easement area through a subsurface concrete
pipe. In 1984, B conveyed all three lots to I Co., which, in 2003, conveyed
lot 2 back to B and conveyed lots 1 and 3 to the plaintiff. The deed
conveying lot 2 to B provided that the premises were subject to a
drainage right-of-way along the northerly line of lot 2 but did not state
who enjoyed that right-of-way. The deed conveying lots 1 and 3 to the
plaintiff provided that they were conveyed together with a drainage
easement across lots 1 and 2. Both deeds provided that the property
was transferred with the appurtenances thereof. In 2007, B conveyed
lot 2 to M Co., and that deed provided that only lot 1 enjoyed the right-
of-way along lot 2. In 2013, M Co. connected to the pipe to provide
additional drainage to its property. Following a trial to the court, the
trial court rendered judgment in part in favor of M Co. on the plaintiff’s
claims for quiet title and trespass, and on its claim that M Co. overbur-
dened its right to use the drainage easement. On the plaintiff’s appeal
to this court, held:
1. The plaintiff could not prevail in its claim that the trial court improperly
rejected its quiet title and trespass claims and found that the plaintiff
failed to prove that it exclusively owned the pipe through which its
drainage ran: although the plaintiff claimed that it introduced evidence
of ownership through the deeds and that the court neglected to consider
that claim, it could not reasonably be disputed that the court carefully
considered the evidence on which the plaintiff based its claim and
rejected it, as the deeds relied on by the plaintiff were admitted into
evidence, transcripts of the trial revealed extensive testimony and argu-
ment relating to the language of the deeds, the court instructed the
parties to file posttrial briefs addressing the deeds and their significance
to the plaintiff’s claims, the court allowed the parties to argue their
positions to the court and during argument the court discussed with
counsel its concerns with and understanding of the evidence before it,
and, therefore, the court’s statement that the plaintiff presented ‘‘no
evidence’’ of exclusive ownership constituted a determination that it
was not persuaded by the plaintiff’s evidence, not an erroneous finding
that the plaintiff had not presented any evidence at all; moreover, the
trial court’s finding that the plaintiff failed to prove exclusive ownership
of the pipe through which its easement runs was not clearly erroneous,
as the plaintiff claimed exclusive ownership of the pipe on the basis of
the deeds relating to the properties, which did not contain any reference
to the pipe at issue, and although it was clear from the language of the
deed conveying lots 1 and 3 to the plaintiff that the drainage easement
over lot 2 was an appurtenance of lots 1 and 3, the plaintiff did not
introduce evidence that the pipe itself, particularly that portion under-
neath lot 2, was an appurtenance to lots 1 and 3, as the language in the
pertinent deeds referring to appurtenances pertained to appurtenances
on the lot being conveyed, not appurtenances on the land over which
the dominant estate enjoyed its easement and, thus, while the portion
of the pipe that went through lot 1 may be considered an appurtenance
to lot 1, the plaintiff cited no legal authority supporting its claim that
a certain habendum clause of the deed by which it obtained title to lot
1 also conveyed to it exclusive ownership of the portion of the pipe
that went through lot 2.
2. The trial court’s finding that the plaintiff failed to prove that M Co.’s use
of the pipe to drain excess stormwater overburdened the drainage sys-
tem was not clearly erroneous; in resolving this claim, the court credited
the testimony of M Co.’s expert over that of the plaintiff’s expert, and
that credibility determination was within the exclusive province of the
trial court to make.
Argued March 11—officially released July 23, 2019
Procedural History
Action seeking, inter alia, to quiet title to certain real
property, and for other relief, brought to the Superior
Court in the judicial district of Hartford and tried to
the court, Moukawsher, J.; judgment in part for the
defendant, from which the plaintiff appealed to this
court. Affirmed.
Benjamin M. Wattenmaker, with whom, on the brief,
was John M. Wolfson, for the appellant (plaintiff).
Edward W. Gasser, with whom, on the brief, was
Margot E. Vanriel, for the appellee (named defendant).
Opinion
BISHOP, J. In this action involving three lots of com-
mercial property and a drainage easement enjoyed by
the plaintiff, Sack Properties, LLC, the owner of two
of those lots, over the lot owned by the defendant Martel
Real Estate, LLC,1 the plaintiff challenges the judgment
of the trial court, rendered after a court trial, in part
in favor of the defendant.2 On appeal, the plaintiff claims
that the trial court improperly (1) rejected its quiet title
and trespass claims on the ground that it failed to prove
that it exclusively owned the pipe through which its
drainage easement ran, and (2) found that it failed to
prove that the defendant had overburdened its right to
use the drainage easement. We disagree, and, accord-
ingly, affirm the judgment of the trial court.3
The following relevant facts are undisputed. In 1976,
the Town Planning Commission of Canton approved a
three lot subdivision plan titled, ‘‘Powder Mill Industrial
Park,’’ submitted by the then-owner of the property,
Henry Bahre. In 1978, Bahre filed a revised map of
the subdivision, as required by the town, showing a
drainage right-of-way, which commenced on the east-
erly line of lot 3, then down the southerly line of lot 1
and northerly line of lot 2, until it ran in its entirety
down the northeast corner of lot 2, and went under
Powder Mill Road, before it dumped into the Farm-
ington River. The stormwater runoff passes under the
easement area by way of a 24 inch subsurface con-
crete pipe.
In 1984, Bahre conveyed all three lots to Inertia
Dynamics, Inc. The deed conveying lot 1 provided, inter
alia: ‘‘Said premises are subject to a twenty (20’) foot
drainage right-of-way along the southeasterly boundary
of the lot . . .’’ The deed conveying lots 2 and 3 pro-
vided, inter alia: ‘‘Lot No. 2 is subject to a drainage
right-of-way along the northerly line of [l]ot No. 2.’’
Subsequently, on April 30, 2003, Inertia Dynamics,
Inc. conveyed lot 2 back to Bahre. The deed conveying
lot 2 to Bahre provided that the ‘‘premises are subject
to a drainage right-of-way along the northerly line of
[l]ot No. 2.’’ It did not state who enjoyed that right-of-
way. On the same day, Inertia Dynamics, Inc., conveyed
lots 1 and 3 to the plaintiff. The deed conveying lots 1
and 3 to the plaintiff provided that they were ‘‘conveyed
together with a drainage easement across [l]ots 1 and
2 . . . .’’ Both of the 2003 deeds provided that the prop-
erty was being transferred ‘‘with the appurtenances
thereof . . . .’’ The deed conveying lot 2 to Bahre was
recorded on the land records before the deed conveying
lots 1 and 3 to the plaintiff.
In 2005, the plaintiff, at its sole expense, installed
and/or made improvements to the subsurface drainage
structures within the drainage easement area to service
its drainage needs.
On April 13, 2007, Bahre conveyed lot 2 to the defen-
dant. This deed also referenced the drainage right-of-
way, but provided that only lot 1 enjoyed that right-
of-way along the northerly line of lot 2. In 2013, the
defendant, in developing its property, connected to the
24 inch pipe to provide additional drainage from its
property.
The plaintiff filed this action by way of a seven count
complaint, alleging a quiet title action pursuant to Gen-
eral Statutes § 47-31, an action for declaratory judgment
pursuant to General Statutes § 52-29, interference with
its easement, trespass, nuisance, unjust enrichment,
and quantum meruit. The crux of the plaintiff’s claims
is that it exclusively owns both the right to enjoy the
drainage easement—over lot 2, from both lots 1 and
3—and the 24 inch concrete pipe that services that
easement, and that the defendant’s connection to that
pipe has overburdened the drainage system to the plain-
tiff’s detriment.
Following a court trial, the trial court issued a memo-
randum of decision dated March 8, 2018, finding in the
plaintiff’s favor that it enjoyed the drainage easement
not only from lot 1, which was not disputed by the
defendant, but also from lot 3. In ruling on the plaintiff’s
additional claims, the court reasoned: ‘‘[The plaintiff]
has [not] proved it owned the pipe. The pipe was there
when [the plaintiff] bought lot 1. The water was flowing
through it. But [the plaintiff] did [not] prove who built
the pipe or prove that its entire length was conveyed
to [the plaintiff] when it bought lot 1. Remember, this
was one lot and it [is] possible the developer intended
the pipe on lot 2 to be owned by the lot 2 owner with
a right to use it by the lot 1 owner. Indeed, the evidence
shows that the pipe had the stub of a pipe attached to
it pointed in the direction of the rest of lot 2. It sits in
a way that implies it was there for lot 2 to connect with.
In fact, while [the defendant] replaced the pipe stub
with a new pipe, [it] connected to the concrete drainage
pipe at the very spot where the concrete stub had been
installed. There is no evidence showing [that the plain-
tiff] exclusively owns the pipe. Therefore, [the plaintiff]
has not met its burden to prove ownership and
trespass.’’
The court also rejected the plaintiff’s claim that the
defendant interfered with its easement. The court rea-
soned: ‘‘[The plaintiff] has [not] proved its right to drain
is impaired—that its easement over lot 2 is surcharged
by excessive drainage into the pipe. [The defendant’s]
lot 2 drainage system only uses the pipe as an overflow
system. Its main system is two infiltration basins—sand
pits encircled by a permanent stone barrier. At one side
of the property this is fed by an elongated swale or
trench. In both locations the basins have a raised con-
crete outlet structure with a grate across the top of it.
In particularly heavy rains water would flow into the
grate and openings on the elevations of the structure.
The credible testimony of Kevin Clark, the engineer
who designed it, shows that the pipe might get some
use in a two year storm—a storm that has a 25 [percent]
chance of happening in any given year. But the pipe
most likely would [not] get any use in a typical rain
storm of an inch or less. This discredits the testimony
and calculations of [the plaintiff]’s expert, James Cas-
sidy. [Cassidy’s calculations] depended on both lots 1
and 3 draining into the pipe when lot 3 does [not] yet
and may never drain into it, and they also depend on
lot 3 being developed to virtually the maximum extent
possible with 50 [percent] of the lot being covered with
an impervious material that would dramatically
increase the amount of drainage from lot 3 and into
the pipe. Since even [the plaintiff]’s wrong-headed and
hypothetical assumptions showed the pipe barely over
capacity, there can be little doubt that Clark’s more
credible assumptions show a minimal impact on the
pipe capacity.
‘‘This minimal impact means the system likely has
little effect on [the plaintiff]’s anti-pollution device. This
is especially the case in light of Martel’s testimony that
any water that reached it would be part of a lot 2 system
that includes a 1500 gallon oil and water separator that
removes many pollutants long before the water even
reaches [the plaintiff]’s anti-pollution device.
‘‘[The plaintiff] has [not] proved that connecting the
lot 2 system to the pipe has had or will have any negative
effect on its pollution control device or that it sur-
charges [the plaintiff]’s drainage easement.’’
The court, therefore, found in favor of the defendant
on the remainder of the plaintiff’s claims. This appeal
followed.
This court has held that ‘‘[w]hether a disputed parcel
of land [or a portion of that land] should be included
in one or another chain of title is a question of fact for
the court to decide.’’ Porter v. Morrill, 108 Conn. App.
652, 663, 949 A.2d 526, cert. denied, 289 Conn. 921, 958
A.2d 152 (2008). Similarly, the determination of whether
one has interfered with the use of an easement is a
question of fact. Kelly v. Ivler, 187 Conn. 31, 49, 450
A.2d 817 (1982). ‘‘The trial court’s findings are binding
upon this court unless they are clearly erroneous in
light of the evidence and the pleadings in the record
as a whole. . . . A finding of fact is clearly erroneous
when there is no evidence in the record 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 applying the clearly erroneous standard of review,
[a]ppellate courts do not examine the record to deter-
mine whether the trier of fact could have reached a
different conclusion. Instead, we examine the trial
court’s conclusion in order to determine whether it
was legally correct and factually supported. . . . This
distinction accords with our duty as an appellate tribu-
nal to review, and not to retry, the proceedings of the
trial court. . . .
‘‘[I]n a case tried before a court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony. . . . The credi-
bility and the weight of expert testimony is judged by
the same standard, and the trial court is privileged to
adopt whatever testimony [it] reasonably believes to
be credible. . . . On appeal, we do not retry the facts or
pass on the credibility of witnesses.’’ (Citations omitted;
internal quotation marks omitted.) FirstLight Hydro
Generating Co. v. Stewart, 328 Conn. 668, 679–80, 182
A.3d 67 (2018). With these principles in mind, we
address the plaintiff’s claims on appeal in turn.
I
The plaintiff first claims that the trial court improp-
erly rejected its quiet title and trespass claims on the
ground that it failed to prove that it exclusively owns
the 24 inch pipe through which its drainage easement
runs under lot 2. The plaintiff argues that the trial court
erroneously found that there was ‘‘no evidence’’ of
exclusive ownership and that it failed to prove exclusive
ownership. We are not persuaded.
We first address the plaintiff’s claim that the trial
court erroneously found that ‘‘[t]here is no evidence
showing [the plaintiff] exclusively owns the pipe.’’ The
plaintiff contends that it did, in fact, introduce evidence
of ownership, specifically, the deeds, and, therefore,
that the trial court’s statement that there was ‘‘no evi-
dence’’ was erroneous and that the court erred in failing
to consider the evidence before it. In support of this
argument, the plaintiff cites to our Supreme Court’s
recent decision in In re Jacob W., 330 Conn. 744, 200
A.3d 1091 (2019). Our Supreme Court explained, in that
termination of parental rights case, that ‘‘[t]he trial court
. . . did not provide any analysis as to the second prong
of [General Statutes] § 45a-717 (g) (2) (C). Instead, the
court grounded its decision on the conclusory finding
that ‘[t]here was no evidence presented by the petitioner
at trial that would support a claim that additional time
to reestablish a relationship with the children would
be detrimental [to their best interests].’ That finding
cannot be reconciled with the record, which reveals
that there was evidence presented that was relevant to
this question. . . .
‘‘In arriving at its finding that the petitioner had pre-
sented no evidence that it would be detrimental to allow
the respondent more time to develop or reestablish a
relationship with the children, the trial court did not
accord any effect to evidence that had been presented
at trial that was relevant to that precise question.’’
(Emphasis in original.) Id., 770–71.
Our Supreme Court construed the trial court’s finding
of ‘‘no evidence’’ as ‘‘expressly declining to consider
. . . relevant evidence.’’ Id., 771–72. Our Supreme
Court concluded: ‘‘In light of the abundance of evidence
in the record contrary to the trial court’s statement
that there was no evidence presented that it would be
detrimental to the best interests of the children to allow
additional time for the respondent to develop a relation-
ship with them, we are left with a firm conviction that
a mistake has been made and, therefore, conclude that
the trial court’s finding was clearly erroneous.’’ Id., 774.
Unlike in In re Jacob W., our review of the record in
the present case does not leave us with a firm conviction
that a mistake has been made. The plaintiff’s argument
that, ‘‘[b]ecause the trial court did not address the plain
language of the deeds in its final, written analysis of
the plaintiff’s argument in this case, it is impossible to
know whether the trial court considered and rejected
the plaintiff’s argument in reaching its final decision or
whether the trial court simply neglected to consider the
argument’’ is belied by the record before us. It cannot
reasonably be disputed, given the entirety of the trial
court record in this case, that the trial court carefully
considered the evidence on which the plaintiff based
its claim of ownership of the pipe and rejected it. All
of the deeds relied on by the plaintiff in support of its
claim of exclusive ownership of the pipe were admitted
into evidence, and the transcripts of the trial reveal
extensive testimony and argument relating to the lan-
guage of the deeds. Not only was there extensive discus-
sion and argument regarding the deeds among counsel
and the court, but the court instructed the parties to
file posttrial briefs specifically addressing the deeds and
their significance to the plaintiff’s claims.4 Following
the filing of these briefs, the trial court allowed the
parties to argue their respective positions to the court.
During that argument, the court discussed with counsel
for both parties, its concerns with and understanding
of the evidence before it. On the basis of our review
of the record, which is replete with discourse between
the court and the parties relating to the plaintiff’s claims
and the evidence that it had introduced in support of
those claims, the plaintiff’s argument that the court
either neglected or forgot about its claim regarding the
deeds is untenable. Moreover, ‘‘it is inevitable that the
court considered other evidence not expressly identi-
fied in its decision. Rather, we presume that the trier
considered all of the evidence in making its findings,
and we review them only for clear error.’’ Lapointe v.
Commissioner of Correction, 316 Conn. 225, 384, 112
A.3d 1 (2015). We thus conclude that the court’s state-
ment that the plaintiff presented ‘‘no evidence’’ of exclu-
sive ownership constituted a determination that it was
not persuaded by the plaintiff’s evidence, not an errone-
ous finding that the plaintiff had not presented any
evidence at all.
We also cannot conclude that the trial court’s finding
that the plaintiff failed to prove exclusive ownership
of the pipe through which its easement runs was clearly
erroneous. ‘‘It is well settled that [a]n easement creates
a nonpossessory right to enter and use land in the pos-
session of another and obligates the possessor not to
interfere with the rules authorized by the easement.
. . . [T]he benefit of an easement . . . is considered
a nonpossessory interest in land because it generally
authorizes limited uses of the burdened property for a
particular purpose. . . . [E]asements are not owner-
ship interests but rather privileges to use [the] land of
another in [a] certain manner for [a] certain purpose
. . . .’’ (Internal quotation marks omitted.) Stefanoni
v. Duncan, 282 Conn. 686, 700, 923 A.2d 737 (2007).
Although it is undisputed that the plaintiff enjoys a
drainage easement over lot 2, and the right to use the
pipe that lies beneath its own lot and lot 2 to effectuate
that drainage, it also claimed exclusive ownership of
the entire pipe, as it stretches from lot 2 to lot 1, then
back across lot 2, and under Powder Mill Road, until
it empties into the Farmington River. The plaintiff bases
its claim of exclusive ownership of the pipe on the
deeds relating to the subject properties, particularly,
the deed by which it acquired lots 1 and 3 from Inertia
Dynamics, Inc. It is undisputed that neither that deed,
nor any of the other deeds pertaining to the properties
in this case, contain any reference to the pipe at issue.
The sole language on which the plaintiff relies in sup-
port of its claim of exclusive ownership of the pipe is
the habendum clause contained in the deed that pro-
vided that the lots 1 and 3 were transferred to the
plaintiff with the ‘‘appurtenances thereof . . . .’’5
‘‘In considering what passes by a deed, appurte-
nances are things belonging to another thing as princi-
pal and which pass as incident to the principal thing.
. . . The term ‘appurtenance’ passes nothing but the
land and such things as belong thereto and are a part
of the realty. . . . It is conveyed with the principal
property. . . . Thus, an appurtenance is a right or privi-
lege incidental to the property conveyed. . . . Appurte-
nances that pass are not limited to such as are abso-
lutely necessary to the enjoyment of the property
conveyed . . . but include such as are necessary to the
full enjoyment thereof . . . and, a deed of property
with ‘appurtenances’ conveys only what is appurtenant
at the time of the conveyance.’’ (Footnotes omitted.)
26A C.J.S., Deeds § 285.
In Algonquin Gas Transmission Co. v. Zoning Board
of Appeals, 162 Conn. 50, 291 A.2d 204 (1971), our
Supreme Court explained: ‘‘An appurtenance is . . .
an apt term for detached apparatus which is built as
an adjunct to a structure, to further its convenient use.’’
(Citation omitted.) Id., 57–58. Examples of appurte-
nances include ‘‘a right of way or other easement to
land; an outhouse, barn, garden, or orchard, to a house
or messuage.’’ Black’s Law Dictionary (6th Ed., 1990).
‘‘Appurtenances of a ship include whatever is on board
a ship for the objects of the voyage and adventure in
which she is engaged, belonging to her owner. Appurte-
nant is substantially the same in meaning as accessory,
but it is more technically used in relation to property,
and is the more appropriate word for a conveyance.’’
Black’s Law Dictionary (3rd Ed., 1933).
Here, although it is clear from the language of the
deed conveying lots 1 and 3 to the plaintiff that the
drainage easement over lot 2 is an appurtenance of lots
1 and 3, the plaintiff did not introduce any evidence
that the pipe itself, particularly that portion of the pipe
that lies beneath the surface of lot 2, is an appurtenance
to lots 1 and 3. As the defendant aptly pointed out in
argument before this court, the language in the perti-
nent deeds referring to appurtenances pertains to
appurtenances on the lot that is being conveyed, not
appurtenances on the land over which the dominant
estate enjoys its easement. Thus, while the portion of
the pipe that goes through lot 1 may be considered an
appurtenance to lot 1, the plaintiff has cited to no legal
authority, nor are we aware of any, that supports its
claim that the habendum clause of the deed by which
it obtained title to lot 1 also conveyed to it exclusive
ownership of the portion of the pipe that goes through
lot 2. To the contrary, the Appellate Court of Illinois
has held that when real property is conveyed by deed,
only those ‘‘buildings and appurtenances located
thereon are likewise conveyed.’’ (Emphasis added.)
McPeak v. Thorell, 148 Ill.App.3d 430, 434, 101 Ill. Dec.
730, 499 N.E.2d 97 (1986). In other words, McPeak
stands for the proposition that a sewer line is only an
appurtenance to the property on which it is located.
The holding in McPeak underscores the evidentiary
insufficiency of the plaintiff’s claim of exclusive owner-
ship of the pipe that runs beneath lot 2. Not only do
the pertinent deeds in this case not reference the pipe,
but the plaintiff did not introduce any evidence of the
parties’ intent at the time of the conveyance of lots 1
and 3 to convey exclusive ownership of the pipe to the
plaintiff. The court was persuaded by other factors that
weighed against the plaintiff’s argument of exclusive
ownership of the pipe, such as the existence of the
stub of the pipe to which the defendant connected that
pointed in the direction to lot 2. We thus conclude that
the trial court’s finding that the plaintiff failed to prove
exclusive ownership of the pipe was not clearly
erroneous.6
II
The plaintiff also claims that the trial court errone-
ously determined that the defendant did not interfere
with its enjoyment of its easement over lot 2. The plain-
tiff claims that adding stormwater runoff from lot 2 to
the pipe at issue overburdens the usable capacity of
the pipe, to its detriment. In resolving this claim, the
trial court credited the testimony of the defendant’s
expert over that of the plaintiff’s expert. Because that
credibility determination is within the exclusive prov-
ince of the trial court, we cannot disturb it. See State
v. Montana, 179 Conn. App. 261, 265–66, 178 A.3d 1119,
cert. denied, 328 Conn. 911, 178 A.3d 1042 (2018).
Accordingly, we cannot conclude that the court’s deter-
mination that the plaintiff failed to prove that the defen-
dant’s use of the pipe to drain excess stormwater over-
burdened the drainage system was erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Thomaston Savings Bank, The U.S. Small Business Administration and
Martel Transportation, LLC, are also defendants in this action. Because they
have not participated in this appeal, any reference herein to the defendant
is to Martel Real Estate, LLC.
2
The plaintiff owns lots 1 and 3 of the property at issue. The court found
in favor of the plaintiff on its claim that lot 3, in addition to lot 1, also
enjoyed a drainage easement over the defendant’s lot. The defendant has
not challenged that determination.
3
The court also found in favor of the defendant on the plaintiff’s claims
of nuisance, unjust enrichment and quantum meruit. The plaintiff has not
challenged the court’s judgment on those claims.
4
Specifically, the trial court ordered posttrial briefs seeking ‘‘law on what
appurtenances include, law on the sequence of conveyances . . . and law
on the sequence of recording on the land records . . . .’’
5
The plaintiff also argues that the lack of a similar habendum clause in
the deed conveying lot 2 to the defendant reflects an intent by Bahre that
the owner of lots 1 and 3 would be the exclusive owner of the entire pipe.
Although the deed by which Bahre conveyed lot 2 to the defendant was the
only pertinent deed lacking a habendum clause, we disagree with the plaintiff
that the absence of such language is conclusive proof of an intent by Bahre
that the owner of lots 1 and 3 exclusively own the pipe. Because appurte-
nances regularly run with land as it is conveyed, regardless of the presence
or lack of a habendum clause, and because the deeds were drafted by
different lawyers and at different times, the trial court reasonably could
have declined to afford any weight to the lack of a habendum clause in the
deed by which the defendant obtained title to lot 2.
6
Moreover, the defendant argued that, when Inertia Dynamics conveyed
lot 2 back to Bahre, which occurred prior to Inertia conveying lots 1 and
3 to the plaintiff, the pipe on lot 2 went with that conveyance, and therefore
could not have gone to the plaintiff with the subsequent conveyances of
lots 1 and 3. In other words, Bahre acquired the pipe on lot 2 before the
plaintiff acquired lots 1 and 3 and their appurtenances, so the pipe could
not have been considered an appurtenance to lots 1 and 3 at the time of
the conveyance to the plaintiff.