Opinion
No. CV 04 4000003S
August 15, 2008
MEMORANDUM OF DECISION
This is an action to quiet title to property in Woodbury, Connecticut ("the disputed property"). The principal issue is the location of the boundary line between the properties of the parties. It was tried to the court on May 7, 2008 and May 8, 2008 together with John Lovetere et al. v. Harold Cole, Docket No. CV 04-0092547S, a companion action which is also a quiet title action brought by adjoining owners against the same defendant. The parties filed briefs on May 30, 2008.
The plaintiffs, Roger L. Simon and Mary Ellen Simon, allege in their one-count complaint that they were deeded legal title to the disputed property on May 30, 1986. The defendant, Harold E. Cole, alleges in his answer that the plaintiffs' claim to the disputed property is based upon an inaccurate survey, and that the defendant has record title to it. Thus, both parties claim record title to the land in dispute.
The plaintiffs have the burden of proof on their complaint. In connection with claims of record title, the burden of proof is the customary preponderance of the evidence standard. The parties must prevail on the strength of their own claims and not on the weakness of their adversary's claim. Koennicke v. Maiorano, 43 Conn.App. 1, 9 (1996).
The parties stipulated to a great deal of documentary evidence which facilitated the trial. In addition, several witnesses testified at the trial. There were deeds, maps, pictures and other documentary evidence. Having considered all of the relevant evidence I make the following findings of fact.
The plaintiffs' chain of title is clear from the expert opinion of the plaintiff's title searcher, Attorney Robert R. Moran, Jr. The culmination of that chain of title is the plaintiffs' acquisition of record title to 86.128 acres of land by warranty deed from Genevra F. Bragg. This property is bounded on the east by property owned by the defendant.
The defendant's chain of title can be traced to a portion of what was once known as the Talarico Farm. Ralph Talarico acquired, between approximately 1945 and 1957, several parcels of land totaling approximately 135 acres ("Talarico Farm"). During his life Mr. Talarico conveyed a number of small lots from the Talarico Farm to family members and other individuals who built residences primarily along Quanopaug Trail and Route 6, the two highways that bordered the Talarico Farm. After the death of Mr. Talarico, his estate executor, R. Frank Talarico, a/k/a Frank Talarico continued to sell additional parts of the Talarico Farm. In 1980 the Estate of Ralph Talarico caused a survey to be made of the unsold portions of the Talarico Farm. The survey was made by Henry W. Hart, the same surveyor who provided an affidavit to the plaintiffs and who testified on their behalf at the trial. That survey depicts a large portion of the farm to be contained in Lot 1 containing 72.80 acres. The westerly boundary of Lot 1 along properties of James F. Bragg, Helen F. Pesents, and Genevra F. Bragg is shown as based upon a class D assessor's map survey. The Estate of Talarico was attempting to save money on surveying costs and did not authorize an A-2 survey of the western boundary of the farm.
This survey was redrawn in 1983 after the sale of another lot and showed the acreage of Lot 1 to be 68.30 acres. The westerly boundary was unchanged. By contract dated June 26, 1984, the defendant agreed to purchase from the Estate of Talarico the 68.30 acres shown on this map. After execution of the real estate contract, but before closing, it came to the attention of the defendant that the parcel he was acquiring might not, in fact, be 68.30 acres in size. Accordingly, the defendant reached agreement with the estate of Talarico that the western boundary of the property would be surveyed to A-2 standards and the acreage adjusted if necessary.
The Estate of Talarico hired Henry W. Hart to perform the survey. Mr. Hart completed the survey and drew a new map which reflected the A-2 western boundary and that the property actually consisted of 56.29 acres. The map notes that: "In determining the boundary between Talarico and Bragg and also Talarico and Helen Pesente (a.k.a. Pesents, later Mrs. Helen Pesente Atchison, now Mrs. Helen Pesente Delcioppo), 45 Judd Farm, Rd., Watertown CT, I walked the land with all the above. Mr. Atchison, who owned the Pesente 12-acre tract jointly with his wife and who had logged the southeast Pesente corner during that period, personally located the southeast Pesente corner which I then marked with an iron pin. Mr. Bragg had indicated a similar location. Mr. Frank Talarico indicated the trail near the pin as being the approximate boundary. Mr. James Bragg, who with his wife has owned the land since 1938 told me that Mr. Barnes, the previous owner and farmer, had stated that the boundary lay east of the trail. I found several stone bounds, walls and barbed wire to confirm this statement." Mr. Hart confirmed these facts in his affidavit and testimony.
On December 5, 1984 the defendant acquired the 56.29 acres by Executor's Deed. This deed describes the property in reference to the Hart survey and recites a metes and bounds description including the line marking the westerly boundary running along the boundary now or formerly with Helen Pesents, James F. Bragg and Genevra F. Pesents. These three individuals are predecessors in title to the plaintiffs in this case and the plaintiffs in the companion case. The Executor's Deed was signed by W. Frank Talarico who had confirmed to Mr. Hart the approximate location of the westerly boundary. The defendant accepted this deed and recorded it and the survey on the Woodbury land records.
At some point in time after the 1984 closing, the defendant became concerned with the accuracy of the western boundary of the property he had acquired. The defendant believed that the western boundary should have been located by the surveyor, Henry W. Hart, further west than it is shown on the survey described in his deed. In 1992 the defendant retained Bradford E. Smith Son, a surveying company in Woodbury, to research the land records and do field work to locate the western line of the property the defendant had purchased from the Estate of Talarico. In January 1993 Bradford E. Smith Son presented to the defendant a written report which concluded that the western boundary line of the parcel acquired from the Estate of Talarico in 1984 "appears to be a reasonable depiction of your western boundary line."
The defendant remained unconvinced that surveyors Hart and Bradford were correct about the location of the westerly boundary of the Talarico Farm. In 2002 the defendant retained the services of: 1) Robert Bolte, a non-lawyer title searcher: 2) Meyers Associates, P.C., a surveying firm from Waterbury; and 3) Walter Robillard, a Georgia lawyer and surveyor. On April 10, 2002, the defendant entered into a contract with the Estate of Ralph Talarico to purchase 12 acres, more or less, which the defendant believed the Estate continued to own along the westerly line of the 56.29-acre parcel purchased by the defendant in 1984. The contract provided that the property to be sold would be further described pursuant to a survey being prepared by Meyers Associates, P.C.
After completion of the Meyers survey, the Estate of Talarico purported to sell by Executor's Deed dated June 24, 2003, not 12 acres, but 37.9 acres as shown on a map prepared by Meyers Associates, P.C. This map shows the easterly line of the 37.9 acres to be identical to the western boundary of the 56.29 acre parcel acquired by the defendant in 1984. The entire 37.9 acres is shown as lying westerly of the 56.29 acre parcel. It is this 37.9 acres which constitutes the "disputed parcel" because it encroaches on the property of the plaintiffs and the property of, John A. Lovetere and Nancy D. Lovetere, the plaintiffs in the companion case.
The plaintiffs' title searcher, Attorney Robert R. Moran, Jr., searched the title to the property of both parties. They are entirely separate chains of title until the purported receipt by the defendant of the 37.9 acre "disputed parcel" in 2004. The deeds to Ralph Talarico which formed the Talarico Farm recite acreage calls which total approximately 134.5 acres. Each conveyance from Mr. Talarico and from his estate, most of which have A-2 surveys, recite acreage calls which total 135.6 acres. It is Attorney Moran's expert opinion that by 2003, before the purported conveyance of the "disputed parcel" to the defendant, the entire Talarico Farm had been conveyed. Attorney Moran is of the "firm and certain opinion that neither Ralph Talarico nor his Estate ever owned" the disputed parcel. Attorney Moran is also of the opinion that: "Accordingly, the Talarico Estate's purported conveyance of the Disputed Property in 2003 is a nullity, and Harold Cole acquired no record title in the Disputed Property by virtue of that purported conveyance."
The most significant witness in the case was Henry Hart, a licensed land surveyor and civil engineer with many years experience, especially in Woodbury where the disputed property is located. Mr. Hart was an extremely credible witness. He has surveyed the property of both parties as well as surrounding properties. It is his opinion that the plaintiffs own the disputed property and the defendant does not. I believe Mr. Hart's testimony. "Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude. It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert . . . The trier may accept or reject, in whole or in part, the testimony of an expert." (Citations omitted. Internal quotation marks omitted.) Sokoloski v. McCorison, 108 Conn.App. 296, 303 (2008).
The defendant was unable to present any credible defense to counter the plaintiffs' evidence. In summary, the defendant's argument is that the westerly boundary of the Talarico Farm runs generally along a "trail" and that the maps drawn by Mr. Hart mistakenly show it running along the wrong trail. The defendant argues that the boundary actually ran along a trail which is located a substantial distance westerly of the trail depicted on the Hart maps. The defendant offered his own testimony, photographs, maps and deeds, and testimony of lay witnesses to support his argument.
First, the defendant offered testimony from Robert Bolte, an experienced non-lawyer title searcher. Mr. Bolte performed title searches of the southerly and westerly portion of the Talarico Farm, first to determine if those chains were good chains, and second to discover such monumentation, descriptions, and other relevant references in the deeds which could then be used by a surveyor to locate the western boundary in the field. He never performed a full search of the entire Talarico Farm. He provided his work to the defendant for use by other professionals engaged by the defendant. He never offered an opinion that the plaintiffs did not have record title or that the defendant did.
Next, the defendant offered testimony from James Terrence Meyers, a surveyor with Meyers Associates. He was not offered as an expert witness and did not provide an opinion on title or the location of boundary lines. Mr. Meyers was engaged by the defendant to utilize Mr. Bolte's title work to locate monuments referred to in the various deeds in order to prepare a survey. Mr. Meyers prepared an A-2 survey which shows the 37.9 acres constituting the disputed parcel. The map identifies the property as "Property claimed by Harold Cole as part of Talarico Farm." (Emphasis added.) Neither the map nor the affidavit of Mr. Meyers contains an opinion that the defendant is the owner of the disputed parcel.
The defendant also called Walter G. Robillard, who is an attorney admitted to practice in Georgia, as well as a surveyor registered in North Carolina, South Carolina and Florida. He has nearly 60 years of surveying and legal experience. Attorney Robillard is a delightful man with outstanding experience and qualifications. But he was not offered as an expert witness and did not express an opinion about who owns the disputed parcel.
The defendant also offered the transcript of the plaintiffs' deposition of R. Frank Talarico who died prior to trial. R. Frank Talarico was the son of Ralph Talarico and was his executor. He is the same man who provided Mr. Hart with the location of the western boundary of the Talarico farm. His deposition was made part of the evidence without objection. This deposition does not help the defendant very much. Mr. Talarico, who was 75 at the time of his deposition, seemed confused by many of the questions and had a hard time identifying documents, even ones which he had signed. When the Talarico estate sold the 56.29 acres to the defendant in 1984 he thought that he was selling the balance of the Talarico farm. Although the estate hired Mr. Hart to establish the westerly boundary of the farm and to draw the map which provided the description used in the deed, he could not identify the map or remember the notation written by Mr. Hart which recites the results of their meeting at the property to confirm the westerly line. But, it does appear that at the time of the deposition he believed that the westerly boundary of the Talarico Farm was further west than it is shown on Mr. Hart's map. He also said that he thought the boundary followed a wire fence and was near where there was a "spring," "pond," or "little spring hole." But, the credibility of this deposition testimony is far outweighed by the strength, reliability and credibility of Mr. Hart's testimony.
The defendant testified and offered a series of photographs of various trees, stone walls, rock piles and old wire fences which he claims mark the true western boundary of his land. The defendant also referred to deeds in the chain of an adjoining property which Mr. Bolte says adjoined the southwesterly corner of the Talarico Farm. These deeds contain a reference to it being the "Pond lot so-called." The defendant asks that the court draw the conclusion that this reference to a Pond lot is the same "pond" or "spring" referred to by Mr. Talarico. The defendant also refers to a 1948 survey of a portion of an adjoining property line which shows a "dam" near the boundary line for support for his position that the westerly boundary of the Talarico Farm was near a pond with a dam. Mr. Bolte's affidavit states that there is a stream which is located slightly west of the trail which the defendant claims as his westerly boundary. The photographs confirm this. From these references the defendant asks the court to conclude that the westerly boundary of the Talarico Farm is inaccurately shown on Mr. Hart's map which was used as the basis for his 1984 purchase of 56.29 acres.
My evaluation of the defendant's evidence is that it is insubstantial. The defendant did not have an expert; no one opined that he has record title to the disputed parcel. He concedes the accuracy of all of the title search work offered by the plaintiffs. In contrast, the plaintiffs' evidence is weighty and convincing. The plaintiffs had two experts on title who opined that the defendant does not have record title to the disputed parcel, and that the plaintiffs do have record title to the disputed parcel.
The evidence produced by the plaintiffs is extensive. It is more than sufficient to satisfy their burden of proof on the quiet title claim alleged in the first count. "[W]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court's duty to accept that testimony or evidence which appears more credible." Matthews v. Magy Bros. Construction Co., 88 Conn.App. 787, 793 (2005). I find the plaintiffs' experts to be credible and accurate. The plaintiffs are the record owners of the disputed property. Judgment shall enter for the plaintiffs quieting title to the plaintiffs' land which is more particularly described on Schedule A attached to this decision. Counsel for the plaintiffs is ordered to prepare a Judgment for review and execution by the court, and for recording on the Woodbury Land Records.
Editor's Note: The referenced attachment has not been included herein.