Opinion
No. FST CV 07-5003145 S
March 26, 2008
DECISION ON TEMPORARY INJUNCTION
Facts
Until 1972 the real properties known as 184 and 186 Shore Road, Old Greenwich, Connecticut, were owned by William and Barbara Reagan. In 1972, the Reagans sold the house and property at 184 Shore Road to the plaintiffs, James and Caroline Stafford (hereinafter, collectively referred to as "Stafford"). On the Reagans' 186 Shore Road property was a house, detached garage, and old shed.
Following the sale, the Reagans and Staffords appear to have had a friendly relationship. The Reagans gave the Staffords permission to use their shed and garage. Following the death of William Reagan in 1981, Barbara Reagan gave Stafford permission to continue to use the shed and garage. Stafford did take advantage of this permission and stored various possessions there.
In October of 2006, Barbara Reagan passed away. Rita Reagan was the executrix and beneficiary of Barbara Reagan's estate. Rita asked Stafford to remove their possessions from the garage, and they did so. Stafford became aware that a real estate developer was interested in purchasing the 186 Shore Road premises. Jean Stafford, daughter of the plaintiffs, came to Rita Reagan with an offer to purchase the premises, which was rejected. In January of 2007, Stafford initiated this lawsuit claiming adverse possession to some part of the 186 Shore Road property, and filed a lis pendens on the property.
In October 2007, intervening defendant, Mark O'Brien Custom Homes, LLC, purchased 186 Shore Road from Rita Reagan, executrix of the Estate of Barbara Reagan. Defendant, O'Brien, has obtained various construction permits from the Town of Greenwich, and has erected a silt fence around the property. The plaintiffs now seek a temporary injunction to prevent defendant, O'Brien from trespassing or destroying "their" property, specifically, moving a shed.
Law
In situations where a temporary injunction is requested, a plaintiff must ordinarily demonstrate a reasonable degree of probability of success on the merits before a temporary injunction may be issued. Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 457, 493 A.2d 229 (1985). The determination of whether plaintiff meets his burden of proving a likelihood of success on a motion for a temporary injunction in adverse possession cases requires the court to hold a hearing analyzing the adverse possession claim. See Gregonis v. Burns, Superior Court, judicial district of Tolland, Docket No. CV 07 5001553 (November 5, 2007, Vacchelli J.); Smith v. Muellner, Superior Court, judicial district of Middlesex, Docket No. CV 03 0102009 (February 9, 2004, Silbert, J.) (36 Conn. L. Rptr. 658, 659).
To prevail on an application for a temporary injunction, the burden is on the applicant to establish (1) a reasonable degree of probability of success on the merits; (2) irreparable harm with no adequate remedy at law; and (3) the harm likely to be suffered by the applicants is greater than that which will result in the interference occasioned by an injunction. See Griffin Hospital v. Commission on Hospitals Health Care, supra, 457-58; see also Walton v. New Hartford, 223 Conn. 155, 167, 612 A.2d 1153 (1992). The plaintiff must show the lack of an adequate remedy at law. Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967). If the plaintiffs have an adequate remedy at law, then they are not entitled to the injunction. Id.
"[A] person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in a action to quiet title, to a judgment of ownership." Devita v. Esposito, 13 Conn.App. 101, 106, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988); Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Schlough v. Ruley, 1 Conn.App. 119, 120, 468 A.2d 1272 (1983).
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 a [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." (Citations omitted; internal quotation marks omitted.) Wildwood Associates, Ltd v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). "The burden of proof is on the party claiming adverse possession." Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., 69 Conn.App. 839, 844, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).
The court heard testimony at a hearing on January 22, 2008. The parties have submitted briefs regarding the issuance of a temporary injunction.
Discussion
An elementary prerequisite to the granting of an injunction is proof of a reasonable degree of probability of success on the merits. The evidence the court heard was that the predecessors in title to the defendant and Rita Reagan, namely William and Barbara Reagan, gave permission to the plaintiffs to use the shed to store lawn equipment and the like, as well as permission to paint and repair the shed. Therefore, the key element of hostility never existed. Use was clearly by permission. A use that is initially permissive can become adverse only by some clear, positive and unequivocal act brought home to the owner. Top of the Town, LLC v. Somers Sportsmen's Assn, supra, 69 Conn.App. 846. No clear evidence of such an unequivocal act was presented in the court's opinion.
There was no evidence that the possession was open, such as fencing, payment of taxes or a survey or a deed placed in the land records.
There was no evidence that the plaintiffs' possession was exclusive. Shared dominion over property defeats a claim of adverse possession. Lisiewski v. Seidel, 95 Conn.App. 696, 702, 899 A.2d 59 (2006).
There was contradictory evidence before the court of continuous use for 15 years. The plaintiffs claim adverse possession from 1972 to the present. But Mrs. Stafford admitted that the Reagans had possession of the shed until sometime after Mr. Reagan's death in 1981. Non-exclusive use is another fatal defect in the plaintiffs' claim. Permission to cut the entire lawn of the Reagans was given in 1984. The contested area where the shed is located was part of the area cut by the plaintiffs based upon permission.
While the plaintiffs testified ownership to the land they possess, 184 Shore Road, Old Greenwich, no such evidence of record title was presented at the hearing. Where both title and possession are put in issue, as in this case, there must be sufficient proof where an injunction against trespass is sought. See Barca v. Mongillo, 133 Conn. 374, 376, 51 A.2d 598 (1947). Furthermore, there was no survey, or other evidence, such as metes and bounds legal description or boundaries as to the portion of the property claimed by the plaintiffs.
Finally, Mrs. Stafford testified that her 1997 survey identified the disputed property as owned by Reagan. "[T]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other." Lazoff v. Padgett, 2 Conn.App. 246, 250, 477 A.2d 155, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984).
Conclusion
There is insufficient evidence presented which would make out a prima facie case at the injunction hearing, in the court's opinion. Therefore, the motion for temporary injunction is denied.
So Ordered.