Opinion
No. CV-02 0099396 S
August 31, 2004
MEMORANDUM OF DECISION
I. BACKGROUND
The plaintiff has brought this action in Two Counts; the First Count is to settle title, and the Second is for trespass.
As to the First Count, the defendant has filed an Answer and Three Special Defenses: the first, laches, has been abandoned; the second, waiver; the third, estoppel. As to the Second Count, the defendant has filed an Answer and Four Special Defenses: the first, statute of limitations; the second, laches, has been abandoned; the third, waiver; the fourth, estoppel.
The defendants have also filed a counterclaim seeking a judgment quieting title over the disputed property, which is a strip of land approximately 32 feet wide by 595 feet long, or, in the alternative, a judgment granting them a permanent easement.
The plaintiff claims that she owns to the centerline of the strip, which strip is the easterly boundary of her property and the westerly boundary of the defendants' property.
The defendants claim that the plaintiff owns only to the westerly edge of the strip, which is the westerly boundary of the defendants' property, and the easterly boundary of the plaintiff's property. The defendants claim that they own the entire strip, subject to an easement in favor of the plaintiff. In other words, the plaintiff claims she owns to the center of the strip, the defendants claim they own the entire strip.
II. DISCUSSION OF EVIDENCE
The evidence in this case presents a complicated tangle of deeds, maps and roads going back to 1845. Much of that evidence has been introduced in the form of testimony from an expert witness, Attorney Lars Edeen, who has extensive experience in searching titles. He was a title searcher from 1984 to 1996, when he passed the Connecticut Bar Exam. Since 1996, he has practiced law, concentrating on real estate matters, both closings on real estate matters, and title issues. He also has experience in providing expert testimony. No other expert testified. In this case, in addition to searching the two properties in question, he examined maps, visited the property and checked the land records for any other evidence that may have shown an abandonment or an acceptance, or anything that would have addressed the road in question.
Attorney Edeen testified that he searched these two titles for the purpose of finding out whether there was a highway running between the two parcels, and if there was, whether he could find evidence on the ground, title or map evidence that would show where the highway was.
In searching the plaintiff's title, Attorney Edeen went back to 1885. Throughout the entire chain of title, all the deed descriptions contain language showing the east boundary to be a highway or old road.
When he searched the defendants' title, he went back to 1845, because he wanted to see if there was a reference in the Lundgren chain to a highway on the west side of that property. Although there was a consistent reference to a highway as the east boundary of the Bergan property in the Bergan chain, there was, according to the defendants, no such highway reference in the Lundgren chain as the west boundary. The 1845 deed describes the property as being bounded west on Old Highway. The defendants dispute that this deed is in the Lundgren chain. No other deeds of the defendants' property describe this property as bounded on the West by a road or highway. Instead, they describe the property as being bounded on the West by the plaintiff's predecessors.
Two of the Exhibits (H and I) are deeds from defendants' predecessors to their immediate predecessor, Hidden Lake Properties. H is a warranty deed; I is a quitclaim deed. Both were dated and recorded on April 18, 1974; H was recorded first and I immediately thereafter. Attorney Edeen testified that the description in H had never been used before, and that although there is nothing in the land records that showed that the roadway belonged to Lundgren's predecessors, the deed seemed to encompass that roadway as part of the defendants' property. The deed incorporates by reference a map which is Exhibit JJ, purporting to be a perimeter boundary map of defendants' property. Also in evidence is Exhibit KK, an interior subdivision map showing many lots, one of which was conveyed to the defendants' immediate predecessor, in the warranty deed (Exhibit H).
Exhibit H, a warranty deed, incorporates by reference the subdivision map (Exhibit KK), which map contains a Note: "Hickory Lane is an abandoned highway formerly known as Higganum-Killingworth County Road. It is 2 rods in width and it is for purpose of egress and engress" (sic.) "by foot, vehicle, or otherwise —" (Vol. 78 p. 160 H.L.R.) That Right of Way Agreement, dated June 28, 1951, was thereby incorporated into the warranty deed of defendants' predecessor.
That Right of Way Agreement, Exhibit BB, makes reference to land on both the east and west sides of "an abandoned town highway known as Higganum-Killingworth County Road running from Hidden Lake Road to the Killingworth town line in said Town of Haddam." It grants "a right of way from said Hidden Lake Road to the Killingworth town line two rods in width over and along said abandoned Higganum-Killingworth County Road for the purpose of ingress and egress —" This agreement was signed by all the owners on the west side of the "abandoned town highway" (Bergan property) and by Emma Burr, described as owner in fee of all of the land on the easterly side "adjoining said highway" (Lundgren property).
As of October 17, 1911, Dennis Vernon Burr owned 100% of the property. On November 25, 1916, he died intestate, and under the laws of intestate succession, his wife, Emma Burr, succeeded to 1/3 of his estate, and each of their six children to 1/9. However, the Probate Court did not issue a Certificate of Distribution of the above shares until 1962. When Emma Burr signed the Right of Way Agreement in 1951, she therefore owned part of the property; her children owned the rest.
Exhibit I, the quitclaim deed to defendants' predecessors, specifically refers to the Right of Way Agreement, and describes the property conveyed as proceeding along the easterly side of the Higganum-Killingworth County Road. The defendants claim that Exhibit I is not in the defendants' chain of title because it was recorded after the warranty deed, Exhibit H. Both deeds are dated April 18, 1974 and both were recorded on that same day: Exhibit H first, and Exhibit I, immediately following. The plaintiff asserts, and the defendants deny that the Right of Way Agreement is an adoption or recognition by the defendants' predecessors of the abandoned highway as being the west boundary of their property.
It is Attorney Edeen's opinion that Exhibit H, by referring to Map KK incorporates by reference the note in KK concerning the Right of Way Agreement, and therefore constitutes recognition and acknowledgment by the defendants' predecessors that both they and the plaintiff were bounded by the abandoned Higganum-Killingworth County Road. He is also of the opinion that Exhibit I confirms this, both by its description, and by its reference to the Right of Way Agreement.
It is Attorney Edeen's opinion that Exhibit H does not accurately describe the maps (JJ and KK) referred to, and that the description in that deed is incorrect. He does not consider it to be a conveyance of the strip in question to the defendants' predecessors because the grantors did not own the strip and therefore could not convey it. He stated that he does not find it unusual that the deeds in the defendants' chain do not refer to the road, because what typically happens is that once a description is used in a deed, succeeding grantors carry on the same description, deed after deed. Attorney Edeen's opinion is that Exhibit I does accurately describe the property conveyed as being bounded on the west by the old road known as the Higganum-Killingworth County Road. He believes that Exhibit H, which is a description from a surveyor's map, seems to include the disputed strip, whereas Exhibit I, a "common law" description, says the property is bounded by the disputed area, rather than including it.
There was testimony from Attorney Edeen that the maps in evidence as Exhibit 1, 2 and 3, accurately show the location of the former Higganum-Killingworth County Road, and that any other maps which show this road as going onto the plaintiff's property rather than continuing on south as the strip in dispute, are in error. He also believes that the existence of the stonewalls shown in many of the maps in evidence "very clearly" locates the highway as it relates to the land records.
Exhibit G is a Permanent Easement from defendants' predecessor to the plaintiff and her husband over a portion of the disputed strip, dated August 14, 1975. The plaintiff's husband, Mr. Bergan, testified that he obtained the easement not because he thought that the defendants owned the strip, but rather because the bank required it when the Bergans applied for a mortgage, because of a concern about where their east boundary was. Attorney Edeen's opinion is that the easement was not needed, and is surplusage.
Attorney Edeen testified that Exhibit W, an 1845 conveyance from Calvin E. Hull to Noah P. Burr is the first (oldest) deed in the defendants' chain of title. It describes the property as "Bounded — West on an old highway —" Attorney Edeen's opinion is that a portion of this property (about 3 acres) was conveyed (Exhibit V) to Wyllys Kelsey, and that although the piece did not come back to Noah P. Burr from Wyllys Kelsey, but rather from the estate of Julius Kelsey, Exhibit T, both deeds are in the defendants' chain of title, because the land conveyed is the same and "it fits very nicely with the abutters," and essentially reunites the parcel that Noah Burr received in Exhibit W in 1845. The court concludes that the 1845 deed, Exhibit W, and Exhibits V and T are not in defendants' chain of title.
The plaintiff's husband, a surveyor, acknowledged that when he heard the plaintiff purchased the property on February 5, 1974, he was aware that his deed referenced a map. Exhibit LL.
That map, as well as the deed itself (Exhibit Y), showed that the Bergan property was bounded on the East by "old road." However, the map also showed (Higganum-Killingworth Road — abandoned) as being on the Bergan property.
Mr. Bergan testified that inasmuch as his deed showed him abutting an old road, he needed nothing more than that, because there was just one road, and that the map maker mislabeled his driveway.
III. CONCLUSIONS 1. Dedication of Road
Since the plaintiff claims that she owns to the center line of the disputed strip by virtue of her easterly boundary being an old road, she has the burden of proving by a fair preponderance of the evidence that this road was appropriated to some public use and accepted for such use by and in behalf of the public.
"Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of the public." Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 271, 141 A.2d 241 (1958); see Crescent Beach Assn. v. East Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976); Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, 154 Conn. 674, 680-81, 228 A.2d 513 (1967); 23 Am.Jur.2d, Dedication § 1. "Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way by the public." Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, supra, 681. See Johnson v. Waterdown, 131 Conn. 84, 89, 38 A.2d 1 (1944); LaChappell v. Jewett City, 121 Conn. 381, 185 A. 175 (1936); New London v. Pequot Point Beach Co., 112 Conn. 340, 344, 152 A. 136 (1930). Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public. DiCioccio v. Wethersfield, 146 Conn. 474, 479, 152 A.2d 308 (1959). No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied. Whippoorwill Crest Co. v. Stratford, supra, 271.
Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279 (1980).
While it is true that actual use need not necessarily be constant or by large numbers of the public; Phillips v. Stamford, 81 Conn. 408, 414, 71 A. 361 (1908); it can hardly be said that the slight use made of the disputed property, coupled with evidence that certain use by the neighbors was with the permission of the plaintiff, constituted acceptance by the public. The use to which the public puts the subject property must continue over a significant period of time; 11 McQuillin, Municipal Corporations (3d Ed. Rev.) § 33.50; and be of such a character as to justify a conclusion that the way is "of common convenience and necessity."
Meshberg, supra, p. 282.
If the plaintiff proves that this old road was a dedicated highway, she would then have to prove that it was abandoned in order to avail herself of the presumption of ownership to the center line of the strip.
Abandonment is a question of fact. Richardson v. Tumbridge, 111 Conn. 90, 93, 149 A. 241. It implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances. Appeal of Phillips, 113 Conn. 40, 46, 154 A. 238; New London v. Pequot Point Beach Co., 112 Conn. 340, 347, 152 A. 136.
Pizzuto v. Newington, 174 Conn. 282, 285 (1978).
The court concludes that, based on the many references over a long period of time, to the land in question as a highway or road in various conveyances and maps, and based on references to it as abandoned, the plaintiff has sustained her burden of proving that the strip in question is a dedicated abandoned highway.
2. Title Claims
Under our law, there is a rebuttable presumption that the land owners whose lands abut the highway continue to be the owners of the soil to the middle of the highway after abandonment. See Luf v. Southbury, 188 Conn. 336, 341 (1982).
The court finds that the testimony of Attorney Lars Edeen, that the property of both parties abuts the strip in question, the plaintiff on west, and the defendants on the east, to be persuasive and based on a through title examination. In considering Attorney Edeen's testimony, the court has weighed his experience, his expertise, his thoroughness, as well as the reasonableness of his opinions and the facts upon which he based those opinions. The court finds that the evidence supporting that opinion is the weightier, more convincing, more persuasive and better evidence.
3. Special Defenses of the Defendants
The defendants have filed Three Special Defenses to the First Count (Action to Settle Title).
A. Laches
The defendants have withdrawn the First Special Defense.
B. Waiver
Waiver is the intentional relinquishment of a known right.
Majernicek v. Hartford Casualty Ins. Co., 240 Conn. 86, 96 (1997).
The defendants claim that the plaintiff expressly waived her rights to the property by her acceptance of an easement in 1975 (Exhibit G).
The defendants have not sustained their burden of proving waiver because they have not proved that the plaintiff intended to relinquish any rights. The plaintiff sought and obtained this easement simply because the bank insisted on it when the plaintiff applied for a mortgage loan. The Bergans were putting an addition on their house, and needed the money.
The defendants further claim the plaintiff waived her rights to the property by her silence and by her delay in seeking relief against the claims of ownership by the defendants. The court finds first that the defendants have not proved silence on the part of the plaintiff, and the court further finds that the delay in bringing suit was caused by a lack of funds to finance a lawsuit, and was not a voluntary relinquishment of any rights. The defendants have not proved that there was any waiver.
C. Estoppel
"There are two essential elements to an estoppel-the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done . . . Further, [i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge or the true state of thing but had no convenient means of acquiring that knowledge . . . [T]here must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury." (Citations omitted; internal quotation marks omitted.) Green v. Connecticut Disposal Service, Inc., 62 Conn.App. 83, 91-92, 771 A.2d 137, cert. denied, 256 Conn. 912, 772 A.2d 1124 (2001).
Campbell v. Plymouth, 74 Conn.App. 67, 84 (2002).
The defendants have not proved either of the essential elements of estoppel. Additionally, the defendants acknowledge on page 30 of their Post-Trial Brief that they did not prove damage or a change in position to their detriment, both of which are essential to establish estoppel.
The defendants claim that the plaintiff has acquiesced in the defendants' ownership of the property and is estopped from claiming ownership of the strip by the doctrine of acquiescence.
The defendant next claims that the plaintiffs or their predecessors in title acquiesced in the boundary as established in the 1967 map. Acquiescence in the use and development of an area by a landowner is defined as a consent to the boundary as claimed by an adjoining owner and can estop an acquiescing landowner from pursuing a claim of ownership. See DelBuono v. Brown Boat Works, Inc., 45 Conn.App. 524, 533, 696 A.2d 1271, cert denied, 243 Conn. 906, 701 A.2d 328 (1997). The acquiescence must occur under circumstances that indicate an assent to such a use. Id.
Marshall v. Soffer, 58 Conn.App. 737, 745 (2000).
There was not sufficient evidence presented in this case to support a conclusion that the plaintiff consented to the boundary claimed by the defendants. The plaintiff's deed shows her east boundary to be the road, and as stated before in this Memorandum Of Decision, she obtained the easement at the insistence of the bank, thereby negating the defendants' claim that acceptance of the easement shows acquiescence.
4. Plaintiff's Second Count (Trespass)
The plaintiff has made no mention of trespass in her Briefs, so the court will consider this claim abandoned, See Gallagher v. Gallagher, 29 Conn.App. 482, 484 (1992).
The court finds for the plaintiff in the First Count, for the defendants in the Second Count and for the plaintiff in the Counterclaims.
5. Orders
The court quiets title to the strip of land in question by declaring that the plaintiff, Gail F. Bergan, owner of 39 Hickory Lane, Haddam, Connecticut, and the defendants, Mark P. Lundgren and Kathleen M. Lundgren, owners of 40 Hickory Lane, Haddam, Connecticut, each own in fee to the center line of a strip of land between their homes approximately 595 feet long and 32 feet wide; the plaintiff's half being the western half and the defendants' half being the eastern half.
Both of the above-described fee interests are subject to the Right of Way Agreement set forth in Vol. 78, Page 160 of the Haddam Land Records.
No attorneys fees are awarded.
Judgment may enter accordingly.
RICHARD A. WALSH
JUDGE TRIAL REFEREE