Opinion
No. CV00 02715778
August 22, 2005
MEMORANDUM OF DECISION
The plaintiff has filed this action requesting that the court quiet title to a portion of a parcel of real estate located at 313 Sir Walter Drive, Cheshire, Connecticut. The plaintiff has alleged that he is the absolute owner and possessor of said real estate by virtue of a Warranty Deed dated September 25, 1998, which was recorded on the Cheshire Land Records on September 29, 1998. The plaintiff further alleges that the defendants Kelly A. Norris and John J. Brucato claim estates or interests in portions of 313 Sir Walter Drive, Cheshire, Connecticut that are adverse to the plaintiff's title to said real estate. More particularly, the plaintiff alleges that during September 1999, the defendants or their agents entered upon said land without the plaintiff's permission and caused holes to be dug, trees to be felled and trimmed and soil to be excavated. The plaintiff claims to be damaged by the actions of the defendants. The plaintiff requests that the court determine the respective rights of the parties in or to the subject real estate and to settle the title issues. In addition the plaintiff claims money damages.
The defendants by way of special defenses allege that the plaintiff's claims to all or a portion of the disputed real estate are without right and are extinguished and barred by General Statute § 47-21. The defendants also claim that they have acquired sole and exclusive title to the disputed portion of the subject premises pursuant to General Statutes § 52-575. A third special defense claims the plaintiff is estopped from claiming title or damages, and a fourth special defense alleges negligence by the plaintiff for CT Page 11738-dg neglecting to properly review the status of the parcel's title before he accepted a Warranty Deed. The plaintiff has denied these special defenses. In addition to their special defenses, the defendants have also filed a two-count counterclaim alleging title via adverse possession and requesting that the court quiet title pursuant to General Statutes § 47-31.
Sec. 47-21. Deeds of land by persons ousted of possession, void.
Any conveyance or lease, for any term, of any building, land or tenement, of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void.
Sec. 52-575. Entry upon land to be made within fifteen years.
(a) No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention CT Page 11738-dw of the person giving the notice to dispute the right of possession of the person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in sections 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto by the continuance of the use and possession for any length of time thereafter, provided an action is commenced thereupon within one year next after the recording of such notice. The limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate.
(b) If any person who has such right or title of entry into any lands or tenements is, at the time of the first descending or accruing of such right or title, a minor, non compos mentis or imprisoned, he and his heirs may, notwithstanding the expiration of such fifteen years, make such entry and serve and record such notice at any time within five years next after full age, coming of sound mind or release from prison, or his heirs shall, within five years after his death, make such entry and serve and record such notice, and take benefit of the same.
The trial to the court commenced on October 28, 2004, and was continued to December 21, 2004 and January 19, 2005, when the taking of evidence was completed. The trial briefs and proposed findings of fact by the parties were submitted by March 24, 2005. Prior to this date, the defendants had filed a request for leave to file an amended counterclaim dated March 8, 2005, adding a count alleging a prescriptive easement. After objection by the plaintiff and oral arguments by the parties, the court denied the defendants' request to amend on April 4, 2005.
II THE CLAIMS OF THE PARTIES
The Plaintiff Helming asserts record title to all of that real property described as Lot #7 of the Scottland Estates subdivision. He additionally claims that he has been damaged when the defendants without permission of the plaintiff entered onto his land and "dug holes, trimmed and cut down trees and excavated soil." The Defendants claim that, as to a roughly triangular-shaped parcel along the Plaintiff's northeasterly boundary line, they and their predecessors in title have conducted themselves in such a way as to establish title to said property in themselves by adverse possession. Further, the Defendants claim that the Plaintiff's predecessor(s) in title had been ousted of possession of said portion of real property at the time of the attempted conveyances to other persons in the chain of title, thus voiding in part the deeds purporting to convey same. The defendants also request that the court quiet title to the disputed portion of land and request damages and an order permanently enjoining the plaintiff and his successors and assigns any rights to the disputed parcel. CT Page 11738-dh
III CHAIN OF TITLE
In a case such as this, the Plaintiff is required to prevail on the strength of his own title and not on the weakness of any claim of title that may be made by the Defendants to the same land. Koennicke v. Maiorano, 43 Conn.App. 1, 9, 682 A.2d 1046 (1996). "A mere paper chain of title does not establish ownership in one unless his possession or that of his predecessors in title is shown, though title satisfactorily established may draw with it possession in the absence of any evidence to the contrary." Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150 (1960). The prevailing party must prove his title or interest in the disputed property by a fair preponderance of the evidence. General Statutes § 47-31; Remington Investments, Inc. v. National Properties, Inc., 49 Conn.App. 789, 716 A.2d 141 (1998).
Sec. 47-31. Action to settle title or claim interest in real or personal property reads in relevant part as follows:
(a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it or to have any estate in it either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts CT Page 11738-dx and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.
(b) The complaint in such action shall describe the property in question and state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest . . .
(d) Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived . . .
(f) The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.
Section 47-31 requires a determination of record title before the issue of adverse possession is reached. "Such a construction is based on the fact that the statute lists things which fall into the same category, that of written documentation of title. If the words sources of title were broad enough to include facts comprising adverse possession, the words determine the construction of the same would make no sense. It is the written indicia of title to which the statute refers." (Internal quotation marks omitted) Clark v. Drska, 1 Conn.App. 481, 488, 473 A.2d 325 (1984) "Where a party pursuant to General Statutes 47-31 seeks to quiet title, the trial court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title." Id. at 488-89; Cahill v. Cahill, 75 Conn. 522, 526, 54 A. 201 (1903). "The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of the adverse possession of the other." Id. at 489; Roche v. Fairfield, 186 Conn. 490, 497, 442 A.2d 911 (1982); Merwin v. Morris, 71 Conn. 555, 571-72, 42 A. 855 (1899). CT Page 11738-di
In support of the plaintiff's title claim, the plaintiff presented testimony from an expert witness, Attorney Norman Fishbein. Based upon his examination of the land records for the Town of Cheshire, he rendered an opinion that there is an established, unbroken chain of title in the plaintiff to the real property described herein, and as recited in the recorded warranty deed transferring title to the plaintiff.
Attorney Fishbein specifically testified that a deed from Erardi to Kent (Ex. 10) and all subsequent deeds in the plaintiff Helming's chain of title (Ex. 11, 12, 13, 14, 15, and 16) describe a 41.36' jog in the westerly boundary of the land being conveyed. He further testified that survey maps referred to in these deeds (Ex. 1, 2 and 3) clearly demonstrate the jog and track the descriptions. Attorney Fishbein also testified that the drawn composite of the survey maps (Ex. 32) fairly and accurately represent the subject boundary line and clearly show that the plaintiff has record title to the disputed triangular-shaped parcel. The court finds the testimony of Attorney Fishbein to be credible and convincing.
Attorney Fishbein also testified regarding the defendants' chain of title to their property at 144 Talmadge Road, Cheshire, Connecticut. The defendants acquired title to this property by way of a warranty deed dated June 24, 1999 from Gregg A. Bisson and Maurisa L. Bisson. In addition to the warranty deed from the Bissons (Ex. 30), the defendants received a quitclaim deed (Ex. 31) from the Bissons, also dated June 24, 1999. The difference in the two deeds were regarding the southwest and southeast boundary descriptions.
The warranty deed described the southwest boundary as having "200 feet, more or less." The southeast boundary was described as having "348 feet more or less." The quitclaim deed described the southwest boundary as having "243.63 feet, more or less," while the southeast boundary carried the language "by land now or formerly of Erardi." CT Page 11738-dj
Attorney Fishbein testified that while he was able to establish an unbroken chain of title to 200 feet of the defendants' southwest boundary, he was not able to establish an unbroken chain of title to the approximately 43 feet which he testified belonged to the plaintiff Helming. Fishbein described a pattern in the defendants' chain of title whereby a combination of warranty and quitclaim deeds were employed to convey the property to the defendants and their predecessors in title. This pattern began in 1973 and continued through six different conveyances. The effect was to warrant 200 feet of the defendants' southwest boundary but not the 43.63 feet of the same boundary. Fishbein concluded that this was evidence of doubt in the minds of those who searched the title records and conveyed the 43.63 feet only by way of quitclaim deeds. This doubt was created by a conveyance from Erardi to Troia and a subsequent correction of that conveyance after Erardi apparently realized he had already conveyed the 43 feet nearly two years earlier to Kent. Once again, the court finds Fishbein's opinion to be credible and convincing.
See exhibits 19 through 31.
See exhibit 17.
See exhibit 18.
See Exhibit 10.
The plaintiff offered prima facie proof in this action to quiet title that he has fee simple title to the disputed parcel of real property. Having done so, the burden of overcoming this evidence and showing the contrary rests upon the defendants. See Feuer v. Henderson, 181 Conn. 454, 435 A.2d 1011 (1980). However, the defendants offered no expert testimony concerning the chain of title. They have failed to refute Attorney Fishbein's opinion that record title to the disputed triangular-shaped parcel was owned by the plaintiff.
The court finds that the plaintiff has established by a fair preponderance of the evidence that he has an unbroken chain of title to the real property described in exhibit 16, a warranty deed dated September 25, 1998 from Richard S. Allen, M.D. and Shelley H. Allen. Said warranty deed conveying title to the plaintiff describes the parcel as follows:
First Piece:
All that certain piece or parcel of land with the CT Page 11738-dk buildings and improvements thereon, situated in the Town of Cheshire, County of New Haven and State of Connecticut, and being shown as Lot 7 on map entitled "Subdivision of Property Owned by Frederick L. Malmberg Sir Walter Drive Cheshire Conn., SCOTTLAND ESTATES SUBDIVISION Date October 30, 1984 Scale 1" = 40' "Ziegler Engineering Design. Said map is recorded in the Cheshire Land Records as Map No. 2270, bounded and described as follows:
NORTHEASTERLY: by the Right-of-Way 305.38 feet as shown on said map;
NORTHEASTERLY: again by Right of Way and land now or formerly of Joseph Kent, each in part, 71.50 feet, as shown on said map;
NORTHWESTERLY: by land now or formerly of Patricia R. McLaughlin 346.23 feet as shown on said map;
SOUTHWESTERLY: by land now or formerly of Anne Bonman, et al 44.60 feet, as shown on said map;
SOUTHERLY: by Lot 6, 196.16 feet as shown on said map;
SOUTHERLY: again by Lot 5, 124.26 feet, as shown on said map.
Second Piece:
That parcel shown as a "Right-of-Way reserved for future highway purposes" to be owned by Lot 7 on said map, bounded and described as follows:
SOUTHERLY: by Sir Walter Drive 50.00 feet as shown on said map;
WESTERLY: by Lot 7, 305.38 feet as shown on said map;
NORTHEASTERLY: by land now or formerly of Joseph Kent, 93.26 feet as shown on said map;
NORTHWESTERLY: again by land now or formerly of Joseph Kent 23.31 feet, as shown on said map;
CT Page 11738-dl
NORTHEASTERLY: by a drainage easement to the Town of Cheshire 307.00 feet, as shown on said map.
Together with the right of passway to pass and repass for both pedestrian and vehicular use, and a right of way to install, maintain, replace and repair a drainage pipe as retained in a Warranty Deed from Frederick L. Malmberg and Margaret Malmberg to Gloria J. Dawson dated December 16, 1985 and recorded on December 18, 1985 in volume 546 at Page 6 of the Cheshire Land Records. Said right-of-way is 25 feet in width.
The court notes that this identical property description is also contained in a Certificate of Title issued by Attorney Fishbein to plaintiff's counsel, dated June 28, 2000 and entered into evidence at trial. (Ex. 34.)
IV DEFENDANTS' SPECIAL DEFENSES AND COUNTERCLAIMS
The defendants have filed four special defenses and a two-count counterclaim. The first special defense alleges that the plaintiff's claims to all or part of the disputed parcel are without right whatsoever and were and are extinguished and barred pursuant to General Statutes § 47-21 relating to ouster. In the second special defense, the defendants claim that they and their predecessors in title have used and enjoyed a portion of the premises described herein for more than fifteen years prior to the commencement of the present action and that such use and possession has been at all times open, visible, notorious, adverse, exclusive, continuous, uninterrupted. Therefore the defendants conclude that they and their predecessors in title have acquired and have sole exclusive title to the disputed parcel in accord with General Statutes § 52-575.
The third and fourth special defenses are based upon allegations that the plaintiff knew or should have known that there was an ongoing dispute affecting the subject property and that the plaintiff failed to effectively review the title to the disputed parcel. These special defenses must fail as the court has concluded based on the evidence and the testimony of the plaintiff's expert Attorney Fishbein, that the plaintiff, in fact, has an unbroken chain of title, and there is nothing in the chain of title that would give the plaintiff notice of any ongoing CT Page 11738-dm dispute. The only problem with a chain of title is that which the court has noted in the defendants' chain of title to their own property as testified to by the plaintiff's expert witness. The plaintiff cannot be held to a standard where he was obligated to search the defendant's chain of title in order to be put on notice of any ongoing dispute. The court therefore rejects the defendants' third and fourth special defenses and will move to discuss the first and second special defenses and the counterclaims regarding adverse possession and ouster.
"The essential elements of an adverse possession sufficient to create a title to the land in the adverse possessor are that the owner shall be ousted of possession and kept out uninterruptedly for a period of fifteen years, by an open, visible, and exclusive possession by the adverse possessor, without the license or consent of the owner." Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968), quoting Stevens v. Smoker, 84 Conn. 569, 574, 80 A. 788 (1911). "An ouster is a wrongful dispossession or exclusion of a party from real property, who is entitled to the possession. Like all other wrongful acts, it involves a question of intent." Newell v. Woodruff, 30 Conn. 492, 497 (1862).
"[A]ctual intent implies actual knowledge, and there can be no wrongful dispossession or wrongful exclusion, no adverse intent and adverse holding, where one is in the enjoyment of that which he honestly supposes is his, and has no knowledge that any other person has, or claims to have, a right to participate in the possession of it." Newell v. Woodruff, supra, 498. Thus, if the defendants fail to prove that their possession was adverse and exclusive it would specifically negate the elements of ouster and exclusive use. See Diamond v. Boynton, 38 Conn.Sup. 616, 618, 458 A.2d 18 (1983).
The court therefore will initially determine whether the defendants have proved the adverse and exclusive possession of the disputed parcel which is necessary to acquire title by adverse possession. If they have not, then the defendants will lack the possession necessary to constitute a claim of ouster under section 47-21. Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 465-66, 338 A.2d 470 (1973). However, prior to a discussion of the defendants' claim of adverse possession it is necessary to decide a question raised by the defendants regarding the standard for the burden of proof for the defendants' claim of ouster.
V BURDEN OF PROOF
The defendants argue that the plaintiff's claims to all or part of the CT Page 11738-dn disputed parcel are without right whatsoever and were extinguished and barred pursuant to General Statutes § 47-21. General Statutes § 47-21 provides "[a]ny conveyance or lease, for any term, of any building, land or tenement of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void." The defendants also claim that their burden of proof as to ouster is not clear and convincing proof as in a claim of adverse possession, but rather it is a fair preponderance of the evidence. They contend that there is a significant difference between ouster and adverse possession in that a party claiming ouster is not claiming title in himself. Rather, the claimant is asserting that a particular conveyance is void and "that title has remained with an ousted grantor." By contrast, in adverse possession cases, the possessor is seeking to establish title in himself to the exclusion of one who has record title. Therefore, the defendants conclude that because they do not claim title by virtue of their special defense of ouster, the court should apply the preponderance of evidence standard for the defendants' burden of proof. The court disagrees.
See page 25 of the Defendants' Amended Proposed Findings of Fact and Trial Brief.
The possession necessary to constitute an ouster under § 47-21 is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession. 1525 Highland Assoc. v. Fohl, 62 Conn.App. 612, 622, 772 A.2d 1128 (2001); Wadsworth Realty Co. v. Sundberg, supra, 165 Conn. 465. "Ouster which will render a grantor's deed void under this statute is the same which is required to establish adverse possession." Id. at 622, quoting Robinson v. Meyer, supra, 135 Conn. 693.
The standard of proof for establishing title by adverse possession is "clear and positive proof." Roche v. Fairfield, supra, 186 Conn. 498; Ruggiero v. East Hartford, 2 Conn.App. 89, 96, 477 A.2d 668 (1984); Clark v. Drska, 1 Conn.App. 481, 484, 473 A.2d 325 (1984). This burden of proof places a higher burden upon the claimant than the preponderance of the evidence standard. See Clark v. Drska, supra, 486-87 ("clear and positive" standard equated to "clear and convincing" standard). Whether the elements of adverse possession or ouster have been established are questions of fact for the trial court. Id., 484-85. In order to establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980); Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Arcari v. Dellaripa, 164 Conn. 532, 536, 325 A.2d 280 (1973); Clark v. Drska, supra, 485. CT Page 11738-do
The defendants in their trial brief argue that the court in Public Storage, Inc. v. Eliot Street, Ltd. Partner, 20 Conn.App. 380, 567 A.2d 389 (1989) held the extinguishment of an easement and the establishment of an easement by adverse use need only be established by the preponderance of evidence standard. The court in Public Storage, Inc., noted that there was no logical reason to have different standards of proof for the establishment and extinguishing of easements by adverse use. Id. 385-86 (emphasis in original). The court stated, "In neither case is the acquisition of title to land at issue . . ." Id. 386. The defendants argue that by use of an ouster defense they cannot acquire title. They are only attempting to show that the plaintiff never acquired title to the disputed triangular parcel of land. Therefore, since the acquisition of title is not at issue, the higher standard of clear and convincing proof should not apply.
The court, however, is cognizant that the defendants have filed a counterclaim, claiming ownership of the disputed triangular parcel of land by way of adverse possession, as well as, a special defense of adverse possession. The defendants have not claimed that they have established or extinguished a prescriptive easement by way of an open and hostile "adverse use" of the parcel, which may allow them to establish their claim by a preponderance of evidence. They are claiming title to the parcel by adverse possession and clear and convincing or clear and positive proof is needed. See Boccanfuso v. Conner, 89 Conn.App. 260, 281-85, 872 A.2d 928 (2005) (discussing the burden of proof for extinguishment of an easement by adverse use as opposed to acquiring title by adverse possession.) The court, as noted, has not allowed the defendants' amended counterclaim dated March 8, 2005, adding a count alleging a prescriptive easement. Thus, the court finds that the defendants' special defense of ouster must be proven by the clear and convincing proof standard, Ruggiero v. East Hartford, supra, 2 Conn.App. 96.
VI ADVERSE POSSESSION
As mentioned previously, to establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. Provenzano v. Provenzano, 88 Conn.App. 217, 221, 870 A.2d 1085 (2005). A finding of adverse possession is to be made out by clear and positive proof. Id. "[C]lear and CT Page 11738-dp convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession." Id. at 221-22. "Adverse possession is a question of fact and when found by the trial court will not be reviewed . . . unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion." (Internal quotation marks omitted.) Id. at 221-22, quoting Allen v. Johnson, 79 Conn.App. 740, 745, 831 A.2d 282, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003). A finding of adverse possession is not to be made out of inference, but by clear and positive proof. Provenzano v. Provenzano, supra, 88 Conn. 223; Top of the Town, LLC. v. Somers Sportswear Assoc., Inc., 69 Conn.App. 839, 845, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).
It is also true that a claimant seeking to prove title by adverse possession may tack successive possessions to achieve the requisite uninterrupted fifteen-year period of time. "The authoritative rule of tacking successive possessions for the acquisition of title after fifteen years is found in Smith v. Chapin, 31 Conn. 530 (1863)." Matto v. Dan Beard, Inc., 15 Conn.App. 458, 479; 546 A.2d 854 (1988); See also, Marquis v. Drost, 155 Conn. 327, 231 A.2d 527 (1967). "It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons." Matto v. Dan Beard, Inc., supra, 15 Conn.App. 479-80. The claimant must also prove that the predecessor in title's use was adverse. Marquis v. Drost, supra, 155 Conn. 331 (1967). With these standards in mind, the court addresses the defendants' claims of adverse possession.
The plaintiff filed his action against the defendants in March 2000. It is a result of the plaintiff's pending action that the defendants have asserted their claims of adverse possession and ouster. The court finds that the point of the look back period for the required fifteen-year period is fifteen years prior to the return date in this action of March 21, 2000.
The defendants purchased their property from their predecessors in title, Mr. and Mrs. Bisson on June 24, 1999. Since that date they have maintained the lawn and yard areas located to the left side of their premises as the premises is viewed from a private right of way, up and to CT Page 11738-dq a tree line. At times they have employed a professional landscaper to maintain these areas and they have also done some of the yard maintenance themselves. In the late summer and early autumn of 1999 they installed a chain link fence within the triangular-shaped parcel that is disputed in this matter.
The defendants presented testimony from Frederick Malmberg, the original developer of the Scottland Estates Subdivision. Malmberg testified that he was a predecessor in title to lot 7 that eventually was transferred to the plaintiff. Malmberg and his wife became the owners of the real property that would become the Scottland Estates Subdivision. Malmberg also testified that he planted pine trees along the building line which he concluded was the northwesterly boundary line of lot 7. He stated that he planted the trees on the edge of a grassy area around 1999. The grassy area was from the adjacent property and was maintained by the adjacent owner, a predecessor in title to the defendants. Malmberg had no knowledge who planted a row of hemlock trees, as well, along the alleged boundary line. During cross examination by plaintiff's counsel, Malmberg agreed that he had planted the pine trees on the building line, which was well within the actual boundary line of lot 7. He conceded that he thought that the area he chose for the tree planting was appropriate, but that he had no intent to establish any kind of line by planting the trees in that particular area. He also conceded that when he purchased the property initially, he had no idea where the boundary lines were. He also testified that he could not locate the areas he was testifying about by looking at a map which was offered in evidence by the plaintiff. Malmberg had no knowledge of who was caring for the disputed property prior to 1984.
It is noted that the tree line established by these pine trees are in addition to a tree line of hemlocks.
The following is cross examination excerpts of Malmberg testimony on December 21, 2004. CT Page 11738-dy
Q. But isn't the building line on this map well within the actual boundary line?
A. Yes it is.
Q. Approximately how far can you tell?
A. I would say twenty-five feet, fifty maybe.
Q. This dimension here is 44.60 feet. Would you say that it is approximately 44 feet?
A. Yes.
Q. So you planted these trees 44 feet within the boundary line as conveyed to you by Dr. Allen?
A. I believe I did, yeah.
Q. So these trees were on Dr. Allen's property not on the boundary line of Dr. Allens' property?
A. Yeah.
The defendants also presented the testimony of a realtor who viewed the defendants' property in 1996 and again in 1999 and observed what "appeared" to be the boundary lines. The information she received came from the homeowner, a predecessor in title to the defendants. Her impression was that the boundaries were the tree lines adjacent to a grassy lawn area on the left side of the property. This realtor listed the property for the Bissons in 1999, who subsequently sold the property to the defendants. She represented to the defendants that to her knowledge the boundary line on the left hand side of the defendants' property was the tree line. She made no independent inquiry concerning the boundary line.
The defendant, John Brucato stated at trial that he "walked what he thought was the perimeter of the property" buttressing a tree line. He depended upon the representations of others, including Bisson and the realtor. Other than a general reference to trimmed tree lines, brush and CT Page 11738-dr mowed grass, he never fixed the location of the property that he claims was openly possessed in relation to the recorded boundary lines proved by the plaintiff through Attorney Fishbein. He stated that he did not have the property surveyed and that he was maintaining what he believed to be the property lines.
The defendant Kelly A. Norris-Brucato also depended on the representations of the realtor to fix in her mind the location of the western boundary of her property. She, as well, never made an independent inquiry as to the boundary line locations and did not have a survey completed prior to installing a fence which followed a line of hemlock trees in an irregular line accommodating the hemlock trees. The location of the fence was inspired by the existing tree lines and not a survey. A survey was completed after the plaintiff objected to the location of the fence, but this survey was not entered into evidence by the defendants. Ms. Brucato herself had measured the "openly possessed" portion of the disputed parcel by utilizing a string and a measuring tape, which resulted in a hand-written drawing that was never entered into evidence.
The testimony of the witnesses for the defendants fall short of the evidence necessary to prove adverse possession of the disputed parcel by clear and positive proof and clear and convincing proof. The defendants have not shown the actual location of the open and notorious possession of the disputed parcel in relation to the boundary lines established in plaintiff's proven chain of title.
As to the required fifteen-year time period of adverse possession by the defendants and their predecessors in title, the defendants have also failed to sustain their burden of proof relating to adverse possession and consequently, ouster regarding a specifically defined portion of the plaintiff's property.
The defendants and their immediate predecessor in title Gregg Bisson testified to their knowledge of the property beginning in 1998 to the present. Sherwood Dawson testified concerning his knowledge of the property, which dated to 1960 and 1961. Dawson was a resident of Talmadge Road since for approximately 45 to 46 years. Until 2004, he lived across the street from the defendants' property. He testified that previous owners of the defendants' property maintained the grass area to the beginning of the tree line on the left side of the property and that a previous owner had planted trees on the left side of the property in the late 1980s as a result of a land dispute. Dawson, however, admitted under cross-examination, that he could not pinpoint where the boundary line was and that the location of the tree line was different depending upon whether you were talking about hardwood growth or planted hemlocks. While CT Page 11738-ds Dawson provided testimony concerning his observations of the defendants' property for a period in excess of fifteen years, he could not define or isolate the exact location of the property he observed. The testimony of Frederick Malmberg has already been discussed herein, and suffice it to say that his testimony suffers from the same inability to fix exact locations regarding this dispute.
It is noted that no witnesses for the defendants, including the defendants themselves, have offered any evidence of the location of the property boundary line down the left side of the defendants' property as it relates to the grassy area adjacent to the tree lines of pine and hemlock trees. The defendants and their witnesses have not pinpointed the area of their claims as they relate to maps and deeds entered as exhibits by the plaintiff. The defendants have not entered into evidence any land surveys of their own and have not presented any testimony from expert witnesses relating to the actual boundary lines of their property, the plaintiff's property or their claim to the disputed portion of the triangular parcel. See Matthews v. Nagy Bros. Construction Co., 88 Conn.App. 787, 794-95, 871 A.2d 1057 (2005). The defendants in submitting their post-trial brief and memorandum of law, did submit a survey copy dated March 7, 2005 apparently as an aid to the court. However, this survey copy was not entered into evidence as an exhibit. The taking of evidence in this trial was on January 19, 2005 when the defendants rested. The court, therefore, has not considered this survey copy in reaching its decision.
The defendants have failed to prove that their possession was adverse and exclusive. This failure specifically negates the elements of ouster and exclusive use. See Diamond v. Boynton, supra, 38 Conn.Sup. 618. Ouster pursuant to General Statutes § 47-21 is the possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession. Robinson v. Meyers, supra, 156 Conn. 510 (1968); Loewenberg v. Wallace, supra, 147 Conn. 694. As the defendants have not proved adverse and exclusive possession of the specifically defined disputed parcel necessary to acquire title by adverse possession, they also lack the possession necessary to constitute a claim of ouster under section 17-21 Wadsworth Realty Co. v. Sundberg, supra, 165 Conn. 465-66.
VII DAMAGES
While the plaintiff has claimed money damages in count two of his complaint the court has heard evidence only of the erection of a fence by CT Page 11738-dt the defendants on property of the plaintiff and claims of entry onto the plaintiff's property by the defendants. The plaintiff has not offered any evidence as to the amount of monetary harm he claims. The plaintiff's only witness testified to the chain of title, but not as to any monetary value of any damage to his property. The court notes that the plaintiff, himself, did not testify. The plaintiff has the burden of proof to prove his monetary damages by a fair preponderance of the evidence. From a review of the testimony at trial and the evidentiary exhibits, the court can conclude only that the plaintiff is entitled to only nominal damages in the amount of One Dollar ($1.00).
VIII CONCLUSION
The court having heard the evidence and having reviewed the exhibits hereby enters judgment as follows:
The court finds that the plaintiff has established by a fair preponderance of the evidence that he has an unbroken chain of title to the real property described in exhibit 16, a warranty deed dated September 25, 1998 from Richard S. Allen, M.D. and Shelley H. Allen. Said warranty deed conveying title to the plaintiff describes the parcel as follows:
First Piece:
All that certain piece or parcel of land with the buildings and improvements thereon, situated in the Town of Cheshire, County of New Haven and State of Connecticut, and being shown as Lot 7 on map entitled "Subdivision of Property Owned by Frederick L. Malmberg Sir Walter Drive Cheshire Conn., SCOTTLAND ESTATES SUBDIVISION Date October 30, 1984 Scale 1" = 40' Ziegler Engineering Design. Said map is recorded in the Cheshire Land Records as Map No. 2270, bounded and described as follows:
NORTHEASTERLY: by the Right-of-Way 305.38 feet as shown on said map;
NORTHEASTERLY: again by Right of Way and land now or formerly of Joseph Kent, each in part, 71.50 feet, as shown on said map;
CT Page 11738-du
NORTHWESTERLY: by land now or formerly of Patricia R. McLaughlin 346.23 feet, as shown on said map;
SOUTHWESTERLY: by land now or formerly of Anne Bonman, et al 44.60 feet, as shown on said map;
SOUTHERLY: by Lot 6, 196.16 feet, as shown on said map;
SOUTHERLY: again by Lot 5, 124.26 feet, as shown on said map.
Second Piece:
That parcel shown as a "Right-of-Way reserved for future highway purposes" to be owned by Lot 7 on said map, bounded and described as follows:
SOUTHERLY: by Sir Walter Drive 50.00 feet, as shown on said map;
WESTERLY: by Lot 7, 305.38 feet, as shown on said map;
NORTHEASTERLY: by land now or formerly of Joseph Kent, 93.26 feet, as shown on said map;
NORTHWESTERLY: again by land now or formerly of Joseph Kent 23.31 feet, as shown on said map;
NORTHEASTERLY: by a drainage easement to the Town of Cheshire 307.00 feet, as shown on said map.
Together with the right of passway to pass and repass for both pedestrian and vehicular use, and a right of way to install, maintain, replace and repair a drainage pipe as retained in a Warranty Deed from Frederick L. Malmberg and Margaret Malmberg to Gloria J. Dawson dated December 16, 1985 and recorded on December 18, 1985 in volume 546 at Page 6 of the Cheshire Land Records. Said right-of-way is 25 feet in width.
Accordingly, judgment shall enter for the plaintiff Carlton E. CT Page 11738-dv Helming on Count One of his complaint, as against the defendants Kelly A. Norris and John J. Brucato.
2. As to count two of the plaintiff's complaint claiming money damages the court finds for the plaintiff as against the defendants and awards the plaintiff the sum of One Dollar ($1.00)
3. The court denies the defendants' four special defenses for the reasons recited in this memorandum of decision.
4. The court enters judgment for the plaintiff Helming as against the defendants on each of the two counts contained in the defendants' counterclaim.
THE COURT
Arnold, Judge