Opinion
No. MMX-CV-08-5005127-S
October 28, 2010
MEMORANDUM OF DECISION
The plaintiffs in this case, Michelle Pirruccio and Thomas Wrinn, seek judgment quieting title to a parcel of land situated adjacent to 263 Sand Hill Road, Middletown, Connecticut. The plaintiffs are record title owners of 263 Sand Hill Road. The plaintiffs' amended complaint alleges adverse possession pursuant to General Statutes §§ 47-38 through 47-41 and a claim for entry and detainer pursuant to General Statute Section 47a-43 as against the defendants Fieldbrook Association, Inc. ("Fieldbrook") and The Barnett Development Corporation ("Barnett"). In essence, the plaintiffs claim that they and their predecessors in title have used and enjoyed the disputed property commencing on December 12, 1958, and that said use and possession has been at all times to the present time open, visible, notorious, adverse, exclusive, continuous, uninterrupted and without license or permission. The plaintiffs claim that they have acquired and now have sole and exclusive title to the disputed property through adverse possession. A default for failure to appear as to Barnett was granted on October 17, 2008, and judgment subsequently entered against Barnett. Fieldbrook filed an answer and counterclaim alleging adverse possession and entry and detainer of the disputed property. The plaintiffs filed an answer and special defenses, and the defendant Fieldbrook replied to the plaintiffs' special defenses. Thereafter, the defendant Fieldbrook filed an amended counterclaim to which the plaintiffs filed an answer and special defenses. Fieldbrook filed a reply to the special defenses and an amended reply. Fieldbrook also filed a supplemental reply. The court heard testimony and received into evidence exhibits on February 23, 2010, and February 24, 2010. The court has reviewed the parties' post-trial briefs. The final brief was filed on July 16, 2010.
General Statutes § 47-38 provides: "The owner of land over which a right-of-way or other easement is claimed or used may give notice in writing, to the person claiming or using the privilege, of his intention to dispute the right-of-way or other easement and to prevent the other party from acquiring the right; and the notice, being served and recorded as provide in Sections 47-39 and 47-40, shall be deemed an interruption of the use and shall prevent the acquiring of a right thereto by the continuance of the use for any length of time thereafter."
General Statutes § 47-39 provides in relevant part: "The notice referred to in Section 47-38 shall be served like an original summons in civil actions on the person claiming or using the way or easement . . ."
General Statutes § 47-41 provides: "The notice under Sections 47-38 and 47-39 shall be considered a disturbance of the right in question which enables the party claiming the right to bring an action as for a nuisance or disturbance for the purpose of trying the right. If the plaintiff in that actions prevails, he shall be entitled to full costs, although he recovers only nominal damages."
The court finds the following facts to have been proven by clear and convincing evidence. The disputed property, which is adjacent to 263 Sand Hill Road, is depicted on the assessor's map between Lots 33 and 34, plaintiffs' Exhibit 1. It is described as:
That certain parcel of real estate which is a portion of property situated in the Town of Middletown, County of Middlesex and State of Connecticut on a map or plan entitled: "Survey Property To Be Conveyed to The Barnett Development Corporation Middletown, Conn., May 6, 1973, Scale: 1" = 50' Cardinal Engineering Associates, Inc., Meriden, Conn." which map is on file in the Middletown Clerk's Office (the "Map").
Said parcel being more particularly bounded and described as follows:
Commencing at a point which point is the southeasterly corner of land now or formerly of Pirruccio; continue thence northerly along the easterly boundary line of said land now or formerly of Pirruccio to a point which is the southerly boundary line of said Sand Hill Road; continue thence easterly along the southerly boundary line of said Sand Hill Road to a point which is the westerly boundary of land now or formerly of Thrall to a point; continue thence southerly along the westerly boundary of said land now or formerly of Thrall to a point which is the northerly boundary line of Lyman Drive; continue thence westerly along the northerly boundary line of said Lyman Drive to a point which is the southwesterly corner of the said land now or formerly of Pirruccio; continue thence easterly along the southerly boundary line of said land now or formerly of Pirruccio to the point or place of beginning.
Being a portion of property conveyed by Warranty Deed from Isidor Rubin, Trustee to The Barnett Development Corporation, dated April 30, 1973; and record in Volume 396, Page 295 of the Middletown Land Records.
Barnett, a Connecticut corporation, built Fieldbrook, which is a neighborhood of homes built in the vicinity of the disputed property. Fieldbrook was incorporated on May 2, 1975. The first certificate of occupancy was issued for Greenwich Court on March 26, 1975, Kent Court on September 17, 1976, Lyman Drive on February 17, 1978, Litchfield Court on November 7, 1978, and Avon Court on December 18, 1979. Barnett was granted record title to property, including the disputed property, by a warrantee deed from Isidor Rubin, trustee, dated April 30, 1973, and recorded May 9, 1973 at volume 396, pp. 295-97 of the Middletown land records. On May 9, 1975, Barnett granted Fieldbrook a quit claim deed conveying an area of open space. Said deed did not convey the disputed property or its sister lot to Fieldbrook. Fieldbrook filed a "Notice Affecting Title to Land" dated June 8, 2007, which provided notice as to the property located in the quit claim deed. The plaintiffs filed a "Notice to Prevent Acquisition of Right-Of-Way, Other Easement or Other Rights" on July 19, 2007. The disputed property and the sister lot were conveyed by way of a quit claim deed from Barnert to Fieldbrook on February 8, 2008. The sister lot, which is similar in size to the disputed property, is located between lots 35 and 36, and it is not part of the disputed property. A lis pendens was filed by the plaintiffs on the disputed property on July 16, 2008.
Title to the property located at 263 Sand Hill Road originated in the plaintiffs through the following conveyances:
1. Warrantee deed from Willis I. Sullivan and Dorothy F. Sullivan to Raffe John Pirruccio and Margaret L. Pirruccio, dated December 12, 1958, and recorded December 15, 1958, in Volume 295, pp. 218-20 of the Middletown land records;
2. Warrantee deed from John Pirruccio and Margaret L. Pirruccio to Lance E. Buhler and Michelle J. Buhler, grantees dated June 22, 1991, and recorded July 10, 1991 in Volume 956, pp. 636-37 of the Middletown land records;
3. Quit claim deed from Lance Buhler to Michelle J. Buhler dated January 29, 1993 and recorded March 22, 1993 in Volume 1005, pp. 34-35 of the Middletown land records; and
4. Quit claim deed from Michelle Pirruccio to Thomas F. Wrinn dated March 24, 2005, and recorded March 29, 2005 in Volume 1488, pp. 735-36 of the Middletown land records.
Michelle Pirruccio's father, Raffe John Pirruccio, was predecessor in title of the disputed title. At the time Mr. Pirruccio purchased 263 Sand Hill Road on December 12, 1958, he and his family commenced using the abutting disputed property. He entered the property without permission and performed yard work including the removal of grass, trees, brush and stone. He also graded and seeded the property. Other activities performed by Mr. Pirruccio and his family on the disputed property included the building and use of an ice skating rink, the storage of motor vehicles, parties and the planting of a garden. Mr. Pirruccio used the property without interference and treated the disputed property as his own from 1959 to 1989. During that period of time, Mr. Pirruccio never asked permission to use the disputed property, was never told not to use it, openly used it and treated it exclusively as his own. Michelle Pirruccio and her then husband took possession of 263 Sand Hill Road in 1989. They continued with the care and maintenance of the disputed property, which included landscaping the property, and continued to hold out the property as their own without interruption. Among the activities she and her family performed on the disputed property were the planting of a garden, the planting of a flower bed with lights and a garden bench, continuous maintenance of the property, the installation of a volleyball net, garden parties, a swing set and the storage of motor vehicles. At all times from 1989 to 2007, Michelle Pirruccio considered herself the owner of the disputed property. Thomas Wrinn, Michelle Pirruccio's present husband, continuously maintained the disputed property beginning in 1992 when he commenced residing at 263 Sand Hill Road through to the present time.
By contrast, Fieldbrook performed no maintenance on the disputed property for the period of 1958 through 1989, and minimal and sporadic maintenance from 1989 to 2007. The sister lot was also not maintained during said period of time. Further, for the period of 1958 to 2007, no one disputed Mr. Pirruccio's or the plaintiff's use of the disputed property, or the performance of maintenance duties on the property.
Both the plaintiffs and Fieldbrook seek title to the disputed property on the basis of adverse possession. General Statutes § 52-575(a) provides:
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 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.
"[T]o 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 [or her] own and without the consent of the owner . . .
"Furthermore, [a] finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof . . . [C]lear and 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." (Citations omitted; internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn.App. 361, 364-65, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008). Adverse possession is a question of fact. Lisiewski v. Seidel, 95 Conn.App. 696, 701, 899 A.2d 59 (2006). Additionally, title may be acquired by adverse possession even though the possessor knows he or she is occupying the property wholly without right. Ruick v. Twarkins, 171 Conn. 149, 158, 367 A.2d 1380 (1974).
Claims of adverse possession are fact specific and, therefore, each claim must be decided on its own particular facts: "[A]dverse possession claims are highly fact and context specific. In the evaluation of such claims, [t]he location and condition of the land [at issue] must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions . . . [W]hen determining whether the necessary elements of adverse possession exist, each claim must be decided on its own particular facts. The requirements vary according to, and it is necessary to consider, the nature and situation of the property. To determine whether particular acts constitute adverse possession, it is sometimes necessary to consider the character of the property and the purposes for which it is suitable, the circumstances attending the possession, the acts and declarations of [the] claimant while in possession, and the relation of the holder of the legal title to the claimant." (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn, Inc., 93 Conn.App. 759, 775, 890 A.2d 645 (2006). "Proof of the various elements of an adverse possession claim is required to establish that the owner of the land at issue was on notice that a hostile claim was being asserted against his or her ownership rights, such that the owner had the opportunity to take action to protect those rights." Id., 781.
With these principles in mind, the court examines the parties' cross-claims of adverse possession. Addressing the plaintiffs' claim first, the evidence clearly demonstrates that the defendants were ousted from possession of the disputed property. "The possession necessary to constitute an ouster . . . is not some fleeting or ephemeral technical invasion of the property nor the occasional technical invasion tolerated by adjoining neighbors on good terms with one another. Rather, it is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession." (Emphasis omitted; internal quotation marks omitted.) Goodrich v. Diodato, 48 Conn.App. 436, 444, 710 A.2d 818 (1998). The court finds that the plaintiffs' and their Mr. Pirruccio's use of the land, as outlined above, was of such a character as to ripen into a title by adverse possession. Accordingly, the court finds that the defendants were ousted from possession of the disputed property.
Furthermore, the court finds that the plaintiffs' use of the land was open and visible. "The legal significance of the open and visible element is not . . . an inquiry as to whether a record owner subjectively possessed an understanding that a claimant was attempting to claim the owner's property as his own. Rather, the open and visible element requires a fact finder to examine the extent and visibility of the claimant's use of the record owner's property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own. See C.J.S. 482, Adverse Possession § 53 (2003) (`The purpose of the "open", "visible," and "notorious" requirements . . . is to provide the true owner with adequate notice that a trespass is occurring, and that the owner's property rights are in jeopardy. Hence, a claimant will fail to satisfy these requirements unless the possession and use were sufficiently apparent to put the true owner on notice that the claimant was making an adverse claim of ownership'); 3 Am.Jur.2d 139, Adverse Possession § 63 (2002) (`the words "open and notorious possession" . . . mean that an adverse claim of ownership must be evidenced by such conduct as is sufficient to put a person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his or her own')." Schlichting v. Cotter, supra, at 368-69.
Reviewing the numerous photographs submitted into evidence, it is clear that the plaintiffs' and Mr. Pirruccio's maintenance and use of the disputed property was open and notorious. The plaintiffs' predecessors in title commenced using and maintaining the disputed property in December 1958, and continued to do so through 1989 in an open, visible and notorious manner. The plaintiffs themselves continued said maintenance and use to the present time. All of these uses of the disputed property, as outlined above, were sufficient to inform a reasonably diligent owner of the openly visible and apparent existence, nature, extent and use of the disputed property. Frech v. Piontkowski, Superior Court, judicial district of Middlesex, Docket No. CV 065001580 (August 27, 2008, Walsh, J.), aff'd, 296 Conn. 43, 994 A.2d 84 (2010).
Further, the evidence presented by the plaintiffs through witnesses and evidentiary testimony clearly establishes the plaintiffs' exclusive possession of the disputed property. "[A]n exclusive possession, if it is without consent or license of the owner, will result in the acquisition of title by adverse possession when it extends over a marked and readily visible area . . . if the other requisites of acquisition of title by adverse possession are established. This is true notwithstanding the fact that the adverse possessor acted under an honest belief that he was not assuming a possession to which he was not legally entitled, and that that belief ultimately proves to have been a mistaken one." CT Page 20880 Loewenberg v. Wallace, 151 Conn. 355, 357, 197 A.2d 634 (1964). Furthermore, our Supreme Court has held that "exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others . . . Thus, the claimant's possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use . . .
"It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question." (Citations omitted; internal quotation marks omitted). Roche v. Fairfield, 186 Conn. 490, 502-03, 442 A.2d 911 (1982). Here, the court finds the plaintiff's and Mr. Pirruccio's use of the disputed property was exclusive. The evidence that the neighbors occasionally walked on the property was insufficient to interfere with the plaintiffs' exclusive use of the disputed property. As the plaintiffs have shown by clear and convincing evidence that they possessed the land and did not share it with the defendant, their predecessors in title, or anyone else, the court finds, therefore, that the plaintiffs have satisfied the exclusive element of adverse possession. 1525 Highland Associations, LLC v. Fohl, 62 Conn.App. 612, 619-20, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001).
The court finds, moreover, that the clear and convincing evidence establishes that the plaintiffs had actual possession of the disputed property, and that the plaintiffs' as well as Mr. Pirruccio's actions in maintaining the disputed property were consistent with the actions of an owner of the land. "There can be no adverse possession in favor of one who is out of possession." Marshall v. Sarafin, 11 Conn.Sup. 327, 333 (1942). Furthermore, "[i]t is sufficient for the creation of an adverse possession that the possessor enters and possesses as if the land were his own." Alderman v. New Haven, 81 Conn. 137, 141, 70 A. 626 (1908). The evidence in this case clearly establishes that the plaintiffs and Mr. Pirruccio, through their continuous actions from 1958 to May 2007, openly used and maintained the disputed property as if they were the owners thereof, and used the disputed property exclusively from 1958 to 2007.
Further, the court finds that by clear and convincing evidence, the plaintiffs exhibited a claim of right over the disputed parcel. "[A] `claim of right' does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner's right to possession." (Internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 768, 923 A.2d 785, cert. denied, 284 Conn. 904 (2007). Where, as here, the adverse possessor, "[i]n every visible respect . . . manifested her unequivocal intent `to use the property as her own and without consent of the owner,'" the claim of right element is met. (Internal quotation marks omitted.) Id., 769. The plaintiffs and their predecessors in right have claimed the disputed property as their own and have disregarded the true owner's right to possession since December 1958. Mr. Pirruccio testified that he did not know who owned the disputed property but entered the property to maintain it and used it as his own land until 1989. Thus, he clearly intended to use the property as his own and did so without the consent of the owner. The plaintiffs too also disregarded any right to possession by the true owner with similar maintenance and use to the present day.
Additionally, the plaintiffs presented clear and convincing evidence, by way of testimony and exhibits, that through their use and maintenance of the disputed property, they intended to possess the disputed property as their own to the exclusion of others. Said possession and use was clearly hostile. "As a general proposition, to satisfy the hostility requirement of adverse possession, a claimant's possession of the disputed land, from its inception, must be without permission, license or consent of the owner and must continue to be so throughout the required fifteen year period . . . The word hostile, as employed in the law of adverse possession, is a term of art; it does not, despite some troublesome early cases, imply animosity, ill will or bad faith. Nor is the claimant required to make express declarations of adverse intent during the possessory period. Conversely, in order to obtain title by adverse possession one need not be under a good faith mistake that he or she had legal title to the land . . . Hostile possession can be understood as possession that is opposed and antagonistic to all other claims and that conveys the clear message that the possessor intends to possess the land as his or her own." (Citations omitted; internal quotation marks omitted). Mulle v. McCauley, 102 Conn.App. 803, 813-14, 927 A 2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). Mr. Pirruccio's testimony established that he entered upon the disputed property in 1958 without permission or consent of the owner, and maintained the property. He continued to do so through 1989 without permission, license or consent of the owner. Further, at no time he did he ask the owner for permission to do so. As referenced above, all of the plaintiffs' and Mr. Pirruccio's actions on the disputed property, demonstrated their use and possession of the same was hostile to the present day.
The plaintiffs also offered clear and convincing evidence through their testimony as well as their witnesses' testimony and exhibits, that they and their predecessors in title had adverse possession of the disputed property for over fifteen years. "It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons . . . [T]he possession [however] must be connected and continuous . . ." (Citation omitted; internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 650-51, 905 A.2d 1256 (2006); Anderson v. Poirier, Superior Court, judicial district of New Haven, Docket No. CV 07 5015477 (March 13, 2009, Kleegan, J.), aff'd, 121 Conn.App. 748, 997 A.2d 604, cert. denied, 298 Conn. 904, 3 A.3d 68 (2010). Here, Mr. Pirruccio's adverse possession of the disputed property was established for the required fifteen-year period and prior to Fieldbrook's incorporation on May 2, 1978. Further, the plaintiffs have clearly demonstrated that they adversely possessed the disputed property commencing December 12, 1958, when their predecessors in title purchased the adjacent property and shortly thereafter made improvements to the disputed property and maintained and used as their own to the present time. No credible evidence was presented that anyone else sought to maintain the disputed property on a regular and continuous basis for that twenty-five-year period. The use of the disputed property was as of right and in disregard to any rights of the holder of legal title. The court finds, therefore, that Mr. Pirruccio's use of the disputed property for that twenty-five-year period was open and visible. Similarly, the plaintiffs' use of the disputed property to May 2007 was open and visible. Consequently, the court finds that the plaintiffs possessed the disputed property for more than fifteen years.
Additionally, the plaintiffs' and their predecessors in right use of the disputed property was continuous and uninterrupted at all times during the required fifteen-year period. "Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to find title by adverse use upon it . . ." (Internal quotation marks omitted.) CT Page 20883 Allen v. Johnson, 79 Conn.App. 740, 746, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003). The defendants presented no evidence that anyone other than the plaintiffs' predecessors in right used and maintained the disputed property during that initial fifteen-year period. It is clear that any claim of ownership by Fieldbrook was well after the fifteen-year period during which the adverse possession was established. See Boccanfusco v. Green, 91 Conn.App. 296, 308, 880 A.2d 889 (2005) (defendants' claim of ownership of disputed property too late to affect exclusivity of plaintiff's use of said property because defendants purchased their property after plaintiffs established title to disputed property by adverse possession). Further, Fieldbrook's claimed use of the disputed property after 1975 was not sufficient to oust the plaintiffs or their predecessors in right. Certainly, it did not constitute adverse possession on the part of Fieldbrook. The plaintiffs and their predecessors in right had actual, visible, open, notorious, exclusive and hostile possession of the disputed property. Said use was continuous and uninterrupted. Accordingly, the court finds that the plaintiffs have possessed the disputed property uninterruptedly for the requisite fifteen-year period.
The defendant Fieldbrook did not interrupt that adverse possession, did not assert their claim to the land and did not perform an act that would reinstate possession. "In order to interrupt continued adverse possession, the record owner must assert his claim to the land, perform some act that would reinstate him in possession, before he can regain what he has lost . . . Moreover . . . it has never been held that an isolated instance of attempted interruption of the user, resulting in no actual interruption, and followed by no attempt to test the right, would as a matter of law necessarily destroy the presumption of a grant founded on a user in other respects sufficient. A demand letter, like [a] verbal protest by the owner against occupancy of the land by an adverse holder, without an actual entry or an action by the owner is without avail, because the owner is still disseised . . ." (Citations omitted; internal quotation marks omitted.) Woycik v. Woycik, 13 Conn.App. 518, 525-26, 537 A.2d 541 (1988).
Further, "[a]fter title has been acquired by adverse possession, it is not necessary to continue holding the land adversely; thus, the failure to continue to hold the land adversely will not defeat the title already acquired, nor will it reinvest the title in another . . . [O]nce title is vested in adverse possessors, they do not have to continue adversely possessing the property in order to retain title to it." 3 Am.Jur.2d, Adverse Possession § 249 (2009); see also Mattern v. Mattern, Superior Court, judicial district of New London at Norwich, Docket No. 125857 (April 30, 2004, Hurley, J.T.R.) (defendant's quit claim deed did not affect plaintiffs' claim for adverse possession because defendant received said deed after plaintiff acquired title by adverse possession). Thus, the defendant Fieldbrook's request in 2007 to the plaintiffs to remove a swing set from the property and the placement of "No Trespassing" signs was well after the plaintiffs owned the property by way of adverse possession. As such, these actions by the defendant Fieldbrook were insufficient to interfere with the plaintiffs' adverse possession.
The court also finds that the plaintiffs' offer to purchase record title of the disputed property from Barnett in August 2007, and attempt to get a quitclaim deed is not sufficient to break the plaintiffs' continuous possession of the disputed property or divest the plaintiffs of title by way of adverse possession. See Provenzano v. Provenzano, 88 Conn.App. 217, 223-24, 870 A.2d 1085 (2005); 2 C.J.S, Adverse Possession § 185. Similarly, the conveyance of the property from Rubin to Barrett in April 1973, did not constitute an interruption to any pending period of adverse possession. See General Statutes § 47-21; 2 C.J.S., Adverse Possession § 172. In addition, Fieldbrook did not present sufficient and credible proof that it paid taxes and insurance on the disputed property.
General Statutes § 47-21 provides: "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."
Turning to the defendant Fieldbrook's counterclaim seeking adverse possession of the property, the court finds that the claim for adverse possession was not properly pleaded. As noted by the plaintiffs, Fieldbrook has failed to properly set forth a claim for adverse possession. Specifically, Fieldbrook failed to allege that its purported use of the disputed property was accompanied by ouster or done in a hostile manner. Further, the amended counterclaim fails to allege a claim of right. Cf. Herasimovich v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 04 0481797S (August 8, 2005, Thompson, J.) (defendant's adverse possession special defense stricken because it failed to allege that use of land was made under a claim of right). In addition, the counterclaim alleging adverse possession fails because the amended counterclaim cites the notice filed on June 8, 2007, and said notice fails to name the disputed property and only gave notice as to the 9.08 acres located behind Greenwich Lane. Moreover, Fieldbrook failed to file suit within one year of the notice pursuant to § 52-575(a), which, as noted previously provides that actions brought pursuant to §§ 47-39 and 40 must "[commence] within one year next after the recording of such notice." See also Gemmell v. Lee, 59 Conn.App. 572, 579, 757 A.2d 1171, cert. denied, 254 Conn. 951, 762 A.2d 901 (2000) (statute sets one year from date of notice to commencement of action).
In addition, even if its adverse possession claim were properly pleaded, Fieldbrook presented insufficient evidence to support its claim for adverse possession. No credible evidence was presented to prove open, visible or exclusive use of the disputed property by Fieldbrook, nor was any credible evidence presented of the ouster requirement. Finally, the claim for adverse possession must fail because the plaintiffs had acquired ownership of the disputed property by way of adverse possession prior to said notice. As noted previously, the quit claim deed from Barnett to Fieldbrook, dated February 8, 2008, did not transfer the disputed property pursuant to the provisions of General Statutes § 47-21. Consequently, Fieldbrook had no standing to contest the plaintiffs' right to the disputed property. See Marrin v. Spearow, Superior Court, judicial district of Litchfield, Docket No. CV 90 0052928 (September 22, 1992, Doherty, J.) rev'd on other grounds, 35 Conn.App. 398, 646 A.2d 254 (1994) (plaintiff without standing to contest defendant's title in subject property because conveyance of said property to plaintiff was void pursuant to § 47-21).
The court next addresses the parties' cross-claims of entry and detainer. General Statutes § 47a-43, the forcible entry and detainer statute, provides in relevant part:
"(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made peaceable entry, without consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain the possession, the party thus ejected, held out of possession, or suffering damage exhibit his complaint to any judge of the Superior Court . . ."(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manners as if he were present."
To prevail under the forcible entry and detainer statute, the plaintiff must prove his or her actual possession of the land, which is a question of fact: "A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed . . . The question of whether the plaintiff was in actual possession at the time of the defendant's entry is one for the trier of fact . . . Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise . . . [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion." (Citations omitted.) Communiter Break Co. v. Scinto, 196 Conn. 390, 393-94, 493 A.2d 182 (1985). The burden of proof is on the complainant to prove the facts alleged by a fair preponderance of the evidence. Stiles v. Homer, 21 Conn. 507, 512-13 (1852).
Turning to the plaintiffs' claim for entry and detainer against Fieldbrook, the court has concluded, as discussed supra, that the plaintiffs established title to the disputed property by way of adverse possession, and, therefore, they have standing to sue under the forcible entry and detainer statute. Sullivan v. Delisa, 101 Conn.App. 605, 611, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007). The plaintiffs presented evidence that Fieldbrook posted "no trespassing signs" on the disputed property commencing in May 2007, and that the police were called regarding the removal of the signs. In addition, surveyor markers were placed on the disputed property and the lawn was mowed, and bulk trash was placed there by Fieldbrook. A letter was sent to the plaintiffs requesting removal of personal property from the disputed property. The plaintiffs were also requested to stop mowing the lawn and told to remove their bulk trash from the disputed property. The court finds that these actions by Fieldbrook demonstrate its attempt to keep the plaintiffs from using their property by way of force and strong hand and further demonstrate Fieldbrook's entrance onto the disputed property without the permission of the plaintiffs. See Imperial Tents, Inc. v. Imperial Shows, LLC, Superior Court, judicial district of New Haven, housing session at Meriden, Docket No. CV 06 4006614 (April 20, 2007, Rubinow J.) ( 43 Conn. L. Rptr. 357). Testimony regarding the removal of the surveyor pins demonstrates that removing them may cause damage to the premises and that the plaintiffs would have to commit a breach of peace in order to regain possession of their land. As such, the plaintiffs have been damaged and injured by the actions of the defendant Fieldbrook. Accordingly, the plaintiffs' claim for entry and detainer is granted.
The defendant Fieldbrook's claim for entry and detainer is denied. The defendant Fieldbrook did not gain title to the property through the quit claim deed, which only conveyed the to the defendant Fieldbrook the interests that the defendant Barnett had in the disputed property. Fieldbrook has never been in possession of the disputed property. The plaintiffs and their predecessor in title had title to the disputed property through adverse possession commencing on December 12, 1958.
As the plaintiffs have prevailed on their claim for entry and detainer, the court must determine what damages they are entitled to. The plaintiffs have requested compensatory damages and double damages. "The burden of proving damages rests on the party claiming them. Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987). Mathematical exactitude is not required where precise proof is not feasible. Hassane v. Lawrence, 31 Conn.App. 723, 727, 626 A.2d 1336 (1993). Nominal damages are recoverable where there is a breach of duty or the invasion of a legal right and no actual damages result. Palmieri v. Cirino, 90 Conn.App. 841, 852, 880 A.2d 172 (2005)." (Internal quotation marks omitted.) Sethi v. Yaglidere, Superior Court, judicial district of Fairfield, Docket No. CV 044003034 (August 24, 2009, Arnold, J.).
Furthermore, pursuant to General Statutes § 47a-46, a plaintiff who prevails by a preponderance of the evidence under the forcible entry and detainer statute may recover double damages and his or her costs against the defendant. Freeman v. Alamo Management Co., 221 Conn. 674, 683, 607 A.2d 370 (1992). "Section 47a-46 requires the trial court to make an independent determination that, taking into account all of the circumstances of the case, an award of double damages is appropriate. In exercising its discretionary authority, the trial court must examine critically any weakness in the plaintiff's case. In so far as [the statute] requires the person at fault to pay to the injured party a greater sum than that which measures the injury sustained, though not strictly penal, it so far partakes of the nature of a penal statute that it should be construed with reasonable strictness in determining whether the act complained of comes within the description in the statute of the acts for which the person in fault is made liable." (Internal quotation marks omitted.) Id., 684.
General Statutes § 47a-46 provides: "The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under Section 47a-43 that he entered into the land, tenement or dwelling unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in Section 47a-43."
At trial, the plaintiffs introduced no credible evidence that they suffered damages as a result of Fieldbrook's unlawful entry and detainer, and, therefore, their claim for compensatory damages is not supported. Accordingly, the plaintiff is entitled to nominal damages in the amount of $1. Fleming v. Bridgeport, 92 Conn.App. 400, 405-06, 886 A.2d 1220 (2005), cert. denied, 277 Conn. 904, 894 A.2d 987, cert. granted in part, 277 Conn. 922, 895 A.2d 795 (2006), aff'd, 284 Conn. 502, 935 A.2d 126 (2007); Reader v. Cassarino, 51 Conn.App. 292, 297-98, 721 A.2d 911 (1998). Furthermore, as the plaintiffs have not suffered actual damages, the court will not award the plaintiff double damages.
Finally, the court denies the defendant Fieldbrook's oral request made at the time of trial to grant it a prescriptive easement. Fieldbrook did not plead allegations supporting a claim for prescriptive easement in its amended counterclaim. The oral claim for prescriptive easement is outside the allegations of the amended counterclaim. The allegations contained therein do not give rise to a cause of action for prescriptive easement. See Francis v. Hollauer, 1 Conn.App. 693, 695-96, 475 A.2d 326 (1984); Sanford v. Dimes, 3 Conn.App. 639, 640, 491 A.2d 398 (1985).
The court finds, therefore, that the plaintiffs have established by clear and convincing evidence that the disputed property was maintained in an open and uninterrupted manner for over fifteen years by their predecessor in right through acts consistent with ownership and to the exclusion of others. No evidence was presented at trial that an objection, written or otherwise, was made to the plaintiffs' use during the fifteen-year period. Mr. Pirruccio exhibited control over and adversely possessed the disputed property for well over the fifteen-year period. Similarly, the plaintiffs exhibited control over and adversely possessed the disputed property for over twenty-three years. Thus, the plaintiffs have met their burden of proof with regard to the requirements of adverse possession pursuant to General Statutes § 52-575 and the common law.
The court further finds that the plaintiffs provided sufficient evidence to prove that the defendant Fieldbrook entered onto the disputed property in 2007 and attempted to interfere with the plaintiffs' access and use of their property. The court also finds that the defendant Fieldbrook attempted to keep the plaintiffs from using their property under force and strong hand. Accordingly, the court grants the plaintiffs' claim for entry and detainer.
Conversely, Fieldbrook has not met its burden of proof with regard to its claims of adverse possession and entry and detainer.
Accordingly, judgment enters for the plaintiffs on their claim of title by adverse possession to the disputed property and on their claim for entry and detainer.