Opinion
No. 40002707
July 17, 2006
MEMORANDUM OF DECISION
The plaintiffs bring this action for adverse possession against the defendants. The plaintiffs purchased property known as 103 Whalehead Road, Groton, Connecticut on May 12, 1977. The defendants' decedent, Marjorie Brown, purchased the property known as 101 Whalehead Road, Groton, Connecticut on July 29, 1959. On or about May 1977, the plaintiffs erected a box wire fence on the boundary line between the properties. The plaintiff determined the boundary line by reading the deed, locating the pins referred to in the deed to the plaintiffs' property and running a line between the same. The box wire fence remains the boundary line today except for a small portion which was removed in 1980 and some arborvitaes planted in place of the portion of the fence that was removed. On or about 1980, the plaintiffs placed a picket fence on the front portion of their lot and replaced a portion of the box wire fence with arbortivaes.
On or about July 1984, the plaintiffs hired George Dieter, a land surveyor, to survey the property. He located an existing iron pipe and drill hole, computed angles and distances and surveyed. He set iron pipes and stakes along the boundary line between the two properties. Kimberly Williamson testified that no one except the plaintiffs and their family utilize the area inside the box wire fence. She also testified that the stockade fence was put up twelve to fifteen years ago. Linda Deveau, the plaintiffs' former neighbor, testified as to the existence of the box wire fence at the time she lived at 99 Whalehead Road, Groton. She lived at that address from 1987 to 1989. She testified also that she continued to visit the Williamsons through the following years. At the request of plaintiffs' counsel, she had also gone to look at the fence. She stated that the original box wire fencing was still on the property and that it was still located in the same place. Defendants' decedent owned the property from 1959 to March 2006. The defendants acquired the property through descent and distribution.
DISCUSSION
"To establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for 15 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 . . . a finding of adverse possession is to be made out by clear and positive proof . . . the burden of proof is on the party claiming adverse possession . . ." Woodhouse v. Mckee, 90 Conn.App. 662, 669 (2005).
In the instant case, the plaintiffs claim to have ousted the defendants' decedent of possession of the property dispute in 1977 when they installed the box wire fence along the length of what they believe to be the boundary line between the parties' properties. The plaintiffs acted under a claim of right. They remained in exclusive possession of the disputed properties since the fence was erected in 1977. It has been an open hostile and notorious possession. The plaintiffs' use of the property has been uninterrupted since the fence was first installed.
The defendants contend that the plaintiffs did not acquire title to the property because the plaintiffs utilized the property under the mistaken belief that it was their property. However, in the case of Loewenberg v. Wallace, 151 Conn. 355 (1964), "a claim of adverse possession will not be defeated even though the claimants, in exercising dominion and control over property were motivated by an honest although a mistaken belief that the area in question was included in the description of the property conveyed to them." The defendants also contend that their decedent, Marjorie Brown, was aware of the plaintiffs' fence and use of the property in question and that she assented to that use. Thus, the defendants argue there was no adverse possession. However, in the case of Provenzano v. Provenzano, 88 Conn.App. 217, 223 (2005), the court stated "that argument is specious. It does not matter if the owner of the land was aware of the plaintiffs' use of his property. Moreover, there is nothing in the record to suggest that Hugo Provenzano granted the plaintiff a license to use the disputed land." Similarly, there is nothing in the record in the instant case to suggest that Marjorie Brown granted the plaintiffs a license to use the property in dispute. Furthermore, the plaintiffs, in addition to erecting a fence along the boundary line, used the area enclosed by the fence exclusively. They planted shrubbery and a garden in the area of dispute. They also installed a swinging bird feeder. Their children played in the area enclosed by the fence and the plaintiffs had parties in the same area.
The defendants contend that the creation of the fence is not an act which absolutely supports a finding of adverse possession. They claim that even if, as the plaintiffs assert, the fence was in the same location when the stockade fence was erected and that that act alone is not an open and notorious and hostile taking. They claim that the neighbors simply had no dispute about the fence because it was allowed by Ms. Brown and did not dipossess her to a degree that she found objectionable. The defendants claim that the plaintiffs have failed to establish adverse possession by clear and convincing evidence.
The court finds otherwise. The court finds that the plaintiffs have established their adverse possession of the area in dispute by clear and convincing evidence. The court also finds that the plaintiffs have established that they ousted the defendants' decedent from possession in 1977 when they installed the box wire fence. They also have established that they utilized said property without interruption from 1977 to the present and that that use was continuous, open, visible and exclusive under a claim of right. The court, therefore, finds that the plaintiffs have gained title to the disputed property through adverse possession.