Opinion
FST-CV-126015791-S
01-13-2016
Sanle Zhang v. 56 Locust Road, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth B. Povodator, J.
This is a case involving a claim of adverse possession which has an unusual if not unique twist. The plaintiffs purchased the property located at 40 Locust Road in Greenwich, in 2012, and are claiming adverse possession to a portion of an abutting property, with the disputed area having acreage in excess of one half acre. The defendant is the owner of 56 Locust Road, the abutting property for which the deed facially includes the disputed area. The defendant acquired the property also in 2012. (In the alternative, plaintiffs are claiming a prescriptive easement to that same disputed area.)
The unusual if not unique aspect of the case is at least partially attributable to the shape of the defendant's property. 56 Locust Road is a somewhat elongated and relatively narrow, roughly rectangular parcel (approximately 100 feet wide and 2, 168 feet long), and the disputed area is located somewhat north of the middle of the parcel. If the plaintiffs establish adverse possession to the disputed area, the remainder of 56 Locust Road would be split into two areas or parcels, separated by the disputed area, leaving one of the " new" parcels (the larger one) landlocked without any access to the other lot and without any access to a public road. A number of the affirmative assertions and defenses by the defendant focus on that situation as requiring either a refusal of the court to find adverse possession to have been proved or requiring the court to otherwise address the consequence of an order finding adverse possession to have been proved.
As already noted, the plaintiffs are seeking an order of the court finding adverse possession to have been proved by the requisite clear and convincing evidence; in the alternative, they are seeking a prescriptive easement. The defendant has filed five special defenses (#157.00), asserting that the adverse possession claim is barred/precluded by the illegal (land use) activities of the plaintiffs' predecessors; laches based on the failure of plaintiffs' predecessors to seek a legal declaration of adverse possession earlier; that the plaintiffs' predecessors did not convey purported title to the disputed area to the plaintiffs; that the court should not recognize adverse possession given the " land use" consequences including a claimed illegal subdivision, creation of illegal lots, etc.; and that an order recognizing the plaintiffs' rights to the disputed area by adverse possession would constitute an illegal (unconstitutional) taking. The defendant also has filed four counterclaims, asserting trespass; a claim predicated on its having given notice to the plaintiffs pursuant to General Statutes § 52-575 (and § 47-38 et seq.) (seemingly seeking to quiet title); a request for declaratory relief that General Statutes § 52-575 is unconstitutional based on the unconstitutional taking implicated by a judgment of adverse possession; and a request for a determination of the existence of an easement by necessity.
Facts
With limited exceptions, the facts are not much in dispute. The parties have submitted proposed findings of fact, but instead of focusing on findings, there is more of an emphasis on the great amount of evidence that was presented rather than essential facts and ultimate facts necessary for adjudication. Thus, it was not necessary for the parties to identify multiple witnesses who testified as to the presence and particular uses of the riding ring in the disputed area over 40+ years, nor was it necessary for the parties to identify multiple witnesses who testified as to the density of vegetation making visibility of the ring difficult from certain perspectives. (There was overwhelming evidence of the existence and use of the riding ring over the decades, and the somewhat limited visibility of the riding ring from certain portions of the defendant's property was not a material factor.)
Legal Standards
The plaintiffs are seeking to quiet title, asking the court to find title via adverse possession. Therefore, the focus is on the requirements for establishment of adverse possession.
" The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by open, visible and exclusive possession of the claimant without license or consent of the owner." (Internal quotation marks and citation, omitted). Castro v. Mortgage Lenders Network USA, Inc., 158 Conn.App. 371, 376, 119 A.3d 639 (2015).
The use of the property by the adverse claimant must be " open, visible and notorious" and the elements must be proven by clear and convincing evidence. 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 806, 54 A.3d 232 (2012).
" If one party's period of use or possession is insufficient to satisfy the fifteen year requirement, that party may tack on the period of use or possession of someone who is in privity with the party, a relationship that may be established by showing a transfer of possession rights." (Internal quotation marks and citations, omitted.) Caminis v. Troy, 300 Conn. 297, 311, 12 A.3d 984 (2011).
[Additional legal standards will be identified in the relevant sections of this decision.]
Jurisdictional Issue
In its post-trial submissions, the defendant raises the issue of standing and subject matter jurisdiction, based on the contention that there was no express or implied conveyance of an interest in the disputed area to the plaintiffs or their predecessors in title (Stenmetz/Cross). In effect, the claim is that the plaintiffs do not have an ability to rely on adverse use by predecessors, in pursuing their claims. Necessarily, the court must address such an issue, when it is raised, before addressing the merits of the case. A number of legal principles inform this analysis.
It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . . Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728, 78 A.3d 148 (2013).
Standing is the legal right to set judicial machinery in motion . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury . . . Padawer v. Yur, 142 Conn.App. 812, 817, 66 A.3d 931 (2013) (internal quotation marks, omitted).
In other words, to demonstrate standing, one need not prove his case on the merits. Rather, standing entails a consideration of whether there is a possibility that some legally protected interest of the person asserting a claim has been adversely affected by the actions of the defendant. Citizens Against Overhead Power Line Construction v. Connecticut Siting Council, 139 Conn.App. 565, 590, 57 A.3d 765 (2012).
The court believes that the plaintiffs clearly have alleged--and offered proof--of at least a colorable claim of entitlement to adverse possession. Actual proof of the merits of their claim, by the appropriate standard, does not implicate subject matter jurisdiction and standing--and as discussed below, the court concludes that they have proved the essential elements of their claim of adverse possession, including the necessary linkage to predecessors in title.
While not directly implicated, Conboy v. State, 292 Conn. 642, 653, n.16, 974 A.2d 669 (2009) contains language that is helpful in analyzing the issue, particularly at this juncture: " When the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred." Here, even if there were jurisdictional implications, we are at the merits-phase of the case and no purpose would be served by trying to analyze a claimed deficiency in plaintiffs' proof as a jurisdictional defect.
In this regard, part of the jurisdictional discussion in Gurliacci v. Mayer, 218 Conn. 531, 544-45, 590 A.2d 914 (1991) is particularly apt. In Gurliacci, the court discussed the need to distinguish between essential elements of a cause of action and jurisdictional requirements, characterizing as " bizarre" an approach that retrospectively determined jurisdiction: " Thus, the court would be compelled to conclude that it had no subject matter jurisdiction over the case that it had tried solely because the plaintiff failed to establish an essential element of his cause of action. We decline to adopt such a bizarre interpretation . . ." Taken to an extreme, the defendant's argument here is that in every adverse possession case, if there were a claimed failure to prove an essential element (and even if just limited to claims related to tacking and/or conveyance of prior interest), the court would be required, retrospectively, to dismiss the case. The court declines to adopt such an approach which closely parallels an approach that previously has been rejected by our Supreme Court.
The ability to rely on predecessors adverse use is not a standing/subject matter jurisdictional issue, and in any event the court finds that the plaintiffs have proven their ability to so rely. Accordingly, the court rejects the jurisdictional challenge, and will now address the merits of the substantive contentions of the parties.
Discussion
Although the defendant does not formally concede the point, there really is no substantial issue as to whether the plaintiffs have facially established most of the elements of a claim of adverse possession (subject to possible defenses), by the requisite standard of proof (clear and convincing evidence). Aerial photographs going back decades show a horse riding ring with ancillary structures straddling the boundary line indicated in the parties' respective chains of title, and there was extensive evidence concerning the open and notorious use of that ring for horse-related activities, again, going back decades. Indeed, ¶ 912-3 of the first special defense assert that during the 40-year ownership of 40 Locust Road by the predecessors of the plaintiffs, the disputed area " was used for commercial uses in violation of the Greenwich Zoning Regulations, including, inter alia, the following uses: a summer camp for instruction in horse care and riding lessons; stabling and grooming of horses; private horseback riding lessons, " and there was, in fact, evidence of such activities having occurred at various times during that extended period of ownership. There was undisputed evidence that the adverse use actually extended beyond the defendant's titled property and onto another property, with the plaintiffs' predecessors making continuous use of a shed on a small triangular shaped intrusion onto that more remote property.
On Exhibit M, the small triangular shaped area is shown as located on land then owned by Caputo.
The topography of the area effectively encouraged the belief that the disputed area was part of the property located at 40 Locust Road. As shown on the maps/surveys (e.g., Exhibit M), the overall disputed area (see footnote 1) is roughly triangular, with one side of the triangle being the actual titled property line between the two properties, and the other two sides of the triangle being stone walls. To the extent that stone walls often are coextensive with property lines, it is not surprising that the plaintiffs' predecessors believed that their property extended all the way to the stone walls, that the stone walls formed the roughly-easterly boundary of the property. That configuration also would be likely to have suggested the same to any owner of 56 Locust Road (and any other observer of the area). To state it from a different perspective: to access the potentially landlocked portion of 56 Locust Road from the street-accessible portion, one has to pass through/over two stone walls that form the cutting edges of the disputed area (cutting the disputed area from the remaining portions of 56 Locust Road).
Attached to this memorandum of decision are two modified versions of exhibits, which shown the disputed area from two perspectives, one a close-up view and the other showing the disputed area in the context of all surrounding properties. The disputed area of relevance is approximately trapezoidal in shape. The parallel sides of the trapezoid are portions of the property lines identified in deeds as separating 56 Locust Road from adjacent properties. The non-parallel sides are the portions of two stone walls that actually meet on the property identified as 62 Bedford Road, sometimes identified as the Caputo property. The plaintiffs' deeded property is generally northwesterly of 56 Locust Road; the Caputo property is generally southeasterly of 56 Locust Road. (Adding the triangular piece described in the previous footnote to the trapezoidal piece described here would result in the entire triangular area that was used by the plaintiffs' predecessors for decades.)
The disputed area, as relates to these parties, is trapezoidal in shape. If one visualizes a triangle resting on one side (its base) and truncates a small triangular area from the apex (here, the Caputo encroachment), what is left is a trapezoidal shaped parcel. Continuing to use the triangle-on-its-base as a basis for description, the base is the generally westerly line described in the respective deeds, and the trapezoidal side parallel to that base is the generally easterly line described in the deeds. The non-parallel sides are portions of the stone walls.
An attempt was made to suggest or establish that the various structures (especially, the fence that surrounded/created the riding ring) were not particularly visible from the defendant's property, especially from the structure on that property and especially when there was foliage on the extensive trees and other vegetation in the area, in an effort to challenge the open and notorious quality of the required usage. Thus, efforts were made to describe the vegetation as dense or a forest-like. The court need not consider whether issues such as line-of-sight or dense vegetation might, in some circumstances, be relevant and material; under the circumstances of this case, the court cannot give such considerations any meaningful weight.
The requirement of open and notorious use is to ensure that there is no secret or hidden use that is suddenly sprung on the record-title owner, as a surprise, as a basis for a claim of adverse possession. Conversely, the theory behind adverse possession is that an owner should make at least some minimal effort at supervising and inspecting its property such that a non-hidden adverse use would become known and provide an opportunity for that owner to assert its rights (e.g., under § 52-575). Taken to an extreme, would an absentee owner be immune to adverse possession because he/she was never in a position to actually see the adverse use? (This of course ignores the seasonal nature of foliage; in colder weather, there is less of an obstruction to the visibility of the structures on, and use of, the disputed area.)
The issue is not whether the adverse use was visible from certain vantage points, whether from the street or the house located on 56 Locust Road. The opposite of open and notorious is not actually-unseen but clandestine. Would a reasonable owner have been expected to observe the use due to its open and obvious nature, if there had been even minimum diligence--e.g., walking the boundaries of the property even once every 14+ years?
This case does not have the " subtlety" of a case in which an abutting property owner may have used a driveway extending a few feet over the boundary line onto a neighbor's property; see, e.g., Shepard Group, LLC v. Arnold, 124 Conn.App. 41, 3 A.3d 975 (2010), nor is it a sliver of land at the far end of the property. This case instead involves an area exceeding half an acre (.5590 acres)--24, 350 sq. ft. to be precise; see, e.g., ¶ 3 of fourth special defense). One might need a survey to determine whether a neighbor's driveway encroaches, and it might seem un-neighborly to be vigilant for minor encroachments--but there is no such issue of neighborliness or subtlety with respect to half an acre being occupied by structures and actively used for training and other horse-related activities. Even a casual examination of the property--at any time within the statutory 15-year time frame--would have revealed the presence of the structures and likely would have revealed the ongoing use of the property by the owners of 40 Locust Road. (The existence of stone walls that were used to demark the boundaries of the claimed ownership by the plaintiffs' predecessors, themselves, should have been red flags concerning the location of boundaries.)
The area is roughly the equivalent of a square with sides in excess of 155 feet, or a circle with a diameter of over 176 feet.
Therefore, the fact that the disputed area may not have been readily visible from certain locations on 56 Locust Road or during certain seasons, does not detract from the open and notorious--large enough to be at least partially visible in aerial photographs going back decades--use of the property by the plaintiffs' predecessors. For example, the principals of the defendant, on a number of occasions, were on the property at 40 Locust Road prior to the purchase of the property at 56 Locust Road--as owners of 52 Locust Road (for a number of years prior to acquisition of 56 Locust Road), and specifically in the disputed area portion of the premises. See, e.g., pp. 53-55 of deposition of Joan Passler. (Exhibit 51.)
Indeed, the use was sufficiently open and notorious--and known--that there was evidence that some of the materials prepared by/for the defendant's predecessor, made reference to the existence of a potential adverse claim to a portion of the property by the abutting property owner, and materials prepared by the plaintiffs' predecessor also made reference to the disputed property, directly and indirectly. As discussed below, in 2004 and 2011, representatives of the defendant's predecessors wrote letters to the plaintiffs' predecessors about encroachment, but never took any action. The apparent reason that Mr. McMenamin attempted to buy 40 Locust Road, despite the existence of an agreement to sell to the plaintiffs, was to solve the already-known problem.
The court finds the trial court cases upon which the defendant relies to be only superficially similar. In Nicolosi v. Ferry, No. CV990334563S, 2002 WL 1041736 (April 30, 2002), the court's discussion of the reasons why it could not find adverse possession to have been proven included the following (where the disputed area is referred to as the " triangular piece"):
The parking of farming equipment on the " Triangular Piece" was intermittent and not of a nature designed to attract undue notice or attention .
[The defendant/claimed adverse possessor] used the equipment at other locations, and the " Triangular Piece" was never farmed or cultivated.
No permanent or temporary structures were ever placed on the property to shield the equipment from the elements .
Mae Lake, a tenant at [the plaintiff/title owner], testified that she assumed the " Triangular Piece" was owned by the defendants [claiming adverse possession], although agents for the landlord, Vitramon, Inc., stated that the disputed parcel was part of the property leased to Mae Lake.
The defendants never placed any " No Trespassing" signs on the disputed parcel, and the use of the parcel was limited to occasionally mowing the land, and the intermittent storage of equipment used by [defendant] in his part-time farming avocation " from time to time ."
A visible inspection of the parcel in photographs revealed equipment which might charitably be described as " junk." (Exhibits J-O.)
The presence of this debris on the " Triangular Piece" is insufficient to establish any use or ownership interest of the parcel by the defendants.
While the presence of vehicles and/or equipment might have been constantly observable in aerial photographs with the assistance of a magnifying glass, the parking was neither open, visible nor continuous, sufficient to form the basis for a claim of adverse possession .
Furthermore, the parcel was not exclusively used by the defendants .
Members of Mae Lake's [the tenant of the plaintiff/title owner] family would play in the " Triangular Piece, " (Emphasis added.)
Without suggesting that that it is an exhaustive listing of distinctions between this case and Nicolosi, the emphasized language in the above excerpt identifies numerous material distinctions. Here, the use was continuous and over several decades, involved the construction/presence of permanent structures, the structures could not be mistaken for junk dumped on the property (especially when horses were present), the uses included ongoing activities rather than simple storage, etc.
Similarly, the reliance on Chambers v. LaVoie, No. HDSP-122789, 2003 WL 22736511 (Nov. 14, 2003), is unconvincing. The Chambers court essentially found that the only activity and only visible sign of claimed dominion was a garden that occupied a portion of the disputed area, and concluded that the fence surrounding the garden was for protection of the plants. Other than that limited evidence of open and notorious use, the court found there to be negligible evidence, e.g., noting that a path across the property was used by many people and not just the party claiming adverse possession. The court found no other indicia of a claim of right, or open and notorious use, etc. The court did observe, however, that the purpose of open and notorious use is " to put other persons on notice of the claimant's claim of the real estate." In this case, there is far more than the de minimis level of open and use found to exist in Chambers, sufficient " to put [the defendant's predecessors] on notice of the [plaintiffs' predecessor's] claim of the real estate."
The court in Chambers noted that the disputed parcel was about 6, 000 square feet on the edge of a parcel of 11+ acres--approximately 1.3% of the entire parcel. Here, the disputed area is approximately 11% of the defendant's 5.1+ acre lot as described in the deed/title (see, e.g., ¶ ¶ 2-3 of fourth special defense), and the disputed area is towards the middle of the property, such that adverse possession would result in a distal land-locked lot of approximately 3 acres (see, e.g., ¶ 6 of fourth special defense) which, doing the requisite arithmetic, would also result in a street-accessible lot at approximately 1.6 acres. In very rough terms, the disputed area in Chambers was a very small area at the far end of the property whereas here, it is a far more substantial area that crudely bifurcates the defendant's property, without the remoteness implicit in the description of the property in Chambers . The court in Chambers obviously was underwhelmed by the evidence presented and gave weight to factors this court does not weigh heavily if at all; here, there is substantial and convincing evidence of assertion of dominion, including structures present for decades, indicative of an open and notorious use under a claim of right.
More accurately: As recited in ¶ 6 of the fourth special defense (mentioned earlier), the potentially-landlocked portion of 56 Locust Road is more than half of the entire lot approximately 3 acres out of 5.1+ acres). " Doing the math" indicates that the street-accessible lot would be approximately 1.562 acres, and would contain the building/improvements. Therefore, the starting point of the disputed area, moving in a linear direction from the road towards the furthest boundary from the road, is about 30% of the length of the property. An alternate perspective--if the property at 56 Locust Road were to be cut in half, perpendicular to the longer dimension, the house and the disputed area would be on the same " half."
The court also questions the significance of the reason for construction of a fence around the garden in Chambers --whether for protection of the garden or otherwise, the significance would seem to be that the adverse claimant constructed such a fence on the property, without seeking permission. Whether it was sufficiently open and notorious is another matter. For example, the court does not agree that any weight should be given to the failure of the adverse claimant to pay taxes on the disputed area. Property taxes are billed by a tax collector, based on information from a tax assessor, who in turn relies on the state of the land records. There is no practical way to pay taxes on a portion of a neighbor's property, and no way to determine what the proper allocation would be. (The court suspects that the pervasiveness of the failure to pay real estate taxes prior to adjudication precludes it from being a differentiating factor.) That is especially a problem in a case such as this where there is a claim that the severance will create one or more nonconforming lots if the disputed area were simply excess acreage, one might " assume" that it could be valued as excess acreage, but here, the land being removed from the ownership of the facially-titled owner might have significant effect on any attempt to value the resulting " split" parcels.
Further, the evidence presented to the court in this case demonstrated that shortly before acquiring the property, the defendant's principal became aware of the problem and began taking steps indicative of a challenge to the plaintiffs' ownership of the disputed area. While this was primarily motivated by knowledge of the existence of the claim of adverse possession and a corresponding refusal of the prior owner to consider selling the property to defendant or its principal (because of the already-existing contractual commitment to sell to the plaintiffs), any prior owner readily would have seen " the problem" with even minimal attention to the conditions on the premises. Certainly, the defendant's principal, Mr. McMenamin, had no difficulty in identifying the proper (title-based) boundaries and the substantial intrusion, once he began looking into the situation.
The defendant's principal put up fencing (described as a deer fence) along the boundaries reflected in the chain of title for 56 Locust Road, prior to the closing conveying the property to the defendant. Afterwards, a formal notice was sent, dated September 18, 2012. (Exhibit 46.)
Indeed, as previously noted, some of the defenses asserted by the defendant rely on the wealth of evidence supporting the existence of adverse possession. The court recognizes the right of a party to plead in the alternative, and that a special defense only needs to be considered if the plaintiffs are able to prove (at least presumptively) their case, but the first and second special defenses (especially) could not have been asserted unless there were substantial evidence of the adverse use of the disputed area by plaintiffs' predecessor. It is the very regularity and intensity of the claimed zoning-violative uses that is the factual basis for the assertion that such illegal usage should bar the adverse possession claim.
The defenses will be discussed in some detail, below. The first special defense lists a number of uses of the disputed area that are claimed to have been done illegally--in violation of land use regulations--and the second special defense is predicated on the fact that if adverse possession actually occurred, it occurred so long ago that there is an issue of undue delay (laches) in asserting it.
Accordingly, the court has little trouble in concluding that the plaintiffs have established, by clear and convincing evidence, that the use of the disputed area-- technically located at 56 Locust Road--by the plaintiffs' predecessors in title to 40 Locust Road, was open and notorious, under a claim of right, and extended over a period of time that was a multiple of the requisite 15 years.
The one issue that requires some focused attention is so-called tacking, since it is clear that the plaintiffs themselves cannot satisfy the requirements for adverse posession--their possession (prior to commencement of this litigation) was a matter of months rather than 15 or more years (The statutory notice from the defendant, Exhibit 46, would have cut off the running of the 15-year period, as of that date; see, § 52-575), and an earlier letter (Exhibit CC) might have been sufficient to cut off the time as of 2011. They necessarily rely on the adverse use/possession of their predecessors.
The court notes that nowhere in the defendant's proposed findings of fact is there a reference to any evidence of permission having been given at any time to any owner of 40 Locust Road, particularly in the 1970s and 1980s. The earliest indication of anyone's knowledge of an encroachment was evidence relating to the discovery of encroachment at the time that Steinmetz/Cross were purchasing 40 Locust Road from the Levees in 2002 (see, proposed finding #44 with citation to Exhibit 23). In 2004, there was some correspondence (Exhibits Z, AA and BB) relating to use of the disputed area and the then-owner's willingness to grant permission for a fee (rebuffed by the then-owner of 40 Locust Road, based on the claim that adverse possession had long since vested ownership in the owners of 40 Locust Road) and a subsequent notice from (on behalf of) the predecessor of defendant in 2011 (Exhibit CC). The 2011 notice asserts that the use of the disputed area by the plaintiffs' predecessors had been " under an explicit grant of permission" by defendant's predecessors in title. There was no credible evidence of any permission having been given at any time, much less at a time that might be relevant to this case, i.e. in the 1970s or 1980s, during the first two decades of the Levees' ownership of 40 Locust Road and use of the disputed area.
For purposes of privity, a sale of the property is generally deemed sufficient, Caminis v. Troy, supra . Some cases, however, indicate that the issue of intent plays a role--was there an intent to convey the adversely-owned extension of the deeded property?
Formulating the question in that fashion, itself, identifies a sub-issue, i.e. contents of the deed or other instruments in the chain of title. The issue would be moot if the deed to the plaintiffs actually recited that the disputed parcel, or any rights to the disputed parcel that may have existed, were being transferred to the plaintiffs along with the historical 40 Locust Road property. There are a number of inter-related reasons why such explicit language in a deed or chain of title is (unsurprisingly) unlikely (if it ever occurs).
The following discussion will be echoed in a discussion of special defenses, particularly the special defense asserting that there was no affirmative conveyance to the plaintiffs.
First, any warranty deed containing such a recitation, without a prior judicial determination, would effectively be an invitation to a lawsuit. Related, it would probably be impossible to obtain title insurance for such a transaction, as any title insurance company would undoubtedly consider such a recitation to be, as noted above, an invitation to a lawsuit. (If title insurance were to be provided, it likely would require an exclusion.) Conversely, in order to obtain title insurance, the property owner undoubtedly is required to attest to the absence of knowledge of any actual or potential boundary disputes, because yet again, if there is any such known potential dispute, it would be perceived as an invitation to a lawsuit.
If a quitclaim deed were used, the grantee and/or title insurance company might be concerned as to why such a " lesser quality" deed was being used (absent circumstances making it appropriate, e.g. the defendant's purchase from a foreclosing lender). And, as something of an overarching concern, any attempt to obtain mortgage financing would implicate the same concerns and problems, as a lender would likely require some degree of certainty as to the extent of the security is obtaining for the loan (and the loan amount, as a percentage of the fair market value, also would be dependent upon knowledge of the full scope of the property interest of the borrower).
Conversely, if a deed explicitly conveying the disputed property were used with any degree of frequency, those cases would be unlikely to be adjudicated much less appealed. Presumably, anyone including claimed adversely-possessed properly in added would have a relatively iron-clad case of adverse possession, as including such an assertion in a deed with even modestly equivocal proof would, yet again, be an invitation to a lawsuit.
While perhaps not true in a rigorous statistical sense, virtually all cases of adverse possession, in which tacking is an issue, do not have anything in the chain of title explicitly relating to the claim of adverse possession. Certainly, in a large percentage of cases, the prior owner, by itself, did not satisfy the 15-year statutory period such that there was nothing relating to the disputed property to be conveyed--there would only have been a less-than 15-year unmatured and inchoate right, that only after the cumulative period exceeded 15 years might ripen into a claim of adverse possession.
That, in turn, leads to a related issue, applicable here. If the plaintiffs were relying primarily on their immediate predecessor in interest, multiple levels of tacking would be required--their own very short period of ownership, preceded by the approximate 10 years of ownership by Cross/Steinmetz (their immediate predecessors in ownership), in turn preceded by the approximately 30 ± years of ownership by the Levees. However, the question suggested by this timeline, viewed in conjunction with the statute, is whether tacking in the ordinary sense is even applicable. Ordinarily, tacking is required to patch together shorter increments of usage, in order to reach the required 15-year benchmark. Here, however, the Levees had, by themselves, used the disputed area for a period that was approximately double the statutory 15 years (1972-2002) such that even before they conveyed the property to Cross/Steinmetz in 2002, the rights of the defendant's predecessors in the disputed area had been fully terminated. (The statute provides that " every person, not entering [within the 15-year time period], and his heirs, shall be utterly disabled to make such entry afterwards.") The statute not only specifies 15 years in which to act, but goes further and asserts a total cut-off of rights thereafter (" utterly disabled"). The court must assume that the specification of a negative consequence, in addition to the recitation of the deadline for taking action (in turn, modified by the emphasis supplied by " utterly"), was intended to have meaning, Kasica v. Columbia, 309 Conn. 85, 101, 70 A.3d 1 (2013).
This is related to an argument advanced by the plaintiffs, to the effect that the conveyance by quitclaim deed to the defendant only conveyed that which the predecessor actually owned, which did not include the disputed area. (A warranty deed would not have been able to convey property no longer owned, either, but it would at least have suggested claimed continued ownership in more forceful terms.)
By contrast, the overwhelming majority of statutes of limitation/repose contained in Chapter 926 of the General Statutes are in the approximate form " no action shall be brought except/but within [a specified time limit]" without the reinforcement of the negative consequence of a failure to do so, as is contained in § 52-575.
Returning to the question of intent, there is no explicit recitation that anything was being transferred beyond the scope of the property description set forth in the chain of title for 40 Locust Road, and there is no explicit recitation that ancillary or otherwise related interests are being retained (not conveyed). The increment of evidence necessary to establish intent in this regard appears to be minimal (e.g., in Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527 (1967), the court recognized the possibility of an oral conveyance of adversely-possessed property), and the discussions, marketing materials, etc., as well as the layout of the property with the riding ring and fencing all facially appearing to be part of the conveyed property, leave the court with the firm impression that there was an intent to convey the entirety of 40 Locust Road, including all ancillary or appurtenant interests, first by the Levees to Steinmetz/Cross and then from Steinmetz to the plaintiffs.
By the time of the conveyance of the property to the plaintiffs, Mr. Cross had died (Exhibit 74).
Particularly persuasive in this regard of the following: Attached to the purchase and sale agreement whereby the plaintiffs were to purchase 40 Locust Road (Exhibit 10) is a residential property condition disclosure report, and on the bottom of the first page, there is a handwritten footnote indicating that " [i]n addition to the 4.07 acres on the deed we have an ownership (by adverse possession for over 30 years) on an additional 1/3-acre inside the stone wall on the far left rear of the property." The same disclosure statement is attached to marketing materials used to sell the property (Exhibit 13), which also contains a verbal description of the property (third page) including a reference to the " open, fenced paddock" the location of which straddles the deed-based property line (and is also shown in multiple photographs attached to the package). The disclosure statement, dated in 2009, was prepared and signed by the then-owners, Steinmetz and Cross.
In marketing the property, there were multiple versions of the marketing package; Exhibit 12 is another version, also with the same narrative and similar if not identical photographs.
Returning to the prior owner, the Levees, Exhibit 6 is a document dated in August 2002, self-identified as an affidavit, in which the Levees attest to the fact that they had used the disputed area since July 5, 1972 (30 years earlier) and that they had continuously made use of the disputed area under a claim of right, specifically stating that the affidavit was being proffered in connection with the sale of the property to Steinmetz and cross " and agree to verify the information set forth in this Affidavit, whether in person or in writing, to any person upon the request of Wayne A. Cross or Cynthia A. Steinmetz, or any other party acting on their behalf through them."
A question was raised as to whether the document truly can be characterized as an affidavit, since there is no indication by the Commissioner of the Superior Court who signed the document that an oath was administered, instead reciting that " [t]he foregoing was acknowledged before me . . ." The court notes that while that is an accurate characterization of the bottom of the document, the top of the document indicates that " [w]e, RAYMOND F. LEVEE and JOAN B. LEVEE, being duly sworn, depose and say the following:" Additionally, there is no stated/apparent reason why the document is required to satisfy the prerequisites for an affidavit, since there is no statutory (or other) requirement for an affidavit in this context. The issue is whether there are indicia of an intent to transfer not only the property as described in the deeds in the chain of title for 40 Locust Road, but also an intent to convey the adversely possessed property that for purposes of this litigation has been designated as the disputed area. Clearly, the " affidavit, " and its included offer to provide any further verification needed, are convincing evidence of just such an intent. That affidavit, in turn, appears to be a follow-up to an email sent to the defendant's principals (Exhibit 13 from the deposition of Cynthia Steinmetz, contained in trial Exhibit 49), in which the plaintiffs' predecessor in title states that the adverse use had been in existence since the late 1960s and that she perceived the disputed area as part of 40 Locust Road.
Again, not to belabor the point, the court also believes that the physical layout virtually mandates such a conclusion. The riding ring (or paddock, as sometimes described) is essentially indivisible in a structural sense and a usage sense. The same can be said (albeit to a lesser extent) about the fence that more broadly almost completely surrounds that entire end of the property including the riding ring, providing an enclosure for horses, etc.; see, e.g., photographs (Exhibits 44 and 45) and especially maps such as Exhibits 27 and 38. Quite simply, it would be irrational to convey part of a riding ring or paddock to a buyer of the property, leaving the remainder of the enclosed oval area out of the transaction.
The riding ring is readily identified in recent (higher resolution) aerial photographs, and can be identified (with assistance) in older aerial photographs going back decades. Joan Passler, daughter of the Levees, testified credibly that the riding ring had been in the same location going back to the time the family moved to 40 Locust Road in 1972, and that there were only minor changes to the fences (e.g., moving a fence a few feet, in order to create separation between the fenced area and a barn, to prevent horses from doing damage to the barn). See, Exhibit 51 (transcript of her deposition). Exhibit 6 from that deposition (contained in trial Exhibit 52) is a real estate ad from 1970 referring to the paddock and ring on the property.
At this point, it is perhaps appropriate to address the defendant's reliance on Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 905 A.2d 1256 (Conn.App. 2006), which addresses, in addition to the question of a claim of right, intent and indicia of intent to convey the area in dispute.
In concluding that the Michauds did not use the plaintiff's property under a claim of right, the court referenced portions of the Michauds' affidavits. In the cited portions, the Michauds averred that they intended to transfer to the defendants only the land described in their deed; they never used the disputed area on a permanent basis; they never used the disputed area under a claim of right; they never fenced in the disputed area; and when they purchased their property, they did not know how close to the boundary the shed was located, but did not intend to occupy beyond their border and would have moved the shed if asked " because it was small and could be moved easily.
The undisputed facts cited by the court support its conclusion that the Michauds did not maintain their shed under a claim of right. First, both Michauds attested that they did not intend to convey to the defendants anything beyond the property described in their deed. In Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527 (1967), our Supreme Court explained that the failure of a predecessor in title to convey the disputed area, either orally or by deed, destroys " the connection between successive adverse claimants which is necessary to the successful acquisition of title by tacking successive adverse possessions . . ." See also 16 R. Powell, Real Property (2005) 91.10[2] (tacking not permitted when " it is shown that the claimant's predecessor in title did not intend to convey the disputed parcel").
Second, the Michauds in their affidavits clearly disavowed any intent to occupy the disputed area under a claim of right. In determining whether entrance on another's property amounts to an ouster, or rather, a mere trespass, [t]he intention guides the entry, and fixes its character . . . (Internal quotation marks and citations, omitted.) 97 Conn.App. 651-52.
Here, of course, neither prong of Durkin Village is applicable. There was no evidence of an explicit disavowal of intent to convey to successors and there was no evidence of a disavowal of use under a claim of right, especially by the Levees during their 30-year occupancy of 40 Locust Road and concurrent use of the dispute area.
Accordingly, although the issue of intent was not conceded, and the element is not as overt as the physical aspects of adverse use, the court has no doubt that the Levees and then Ms. Steinmetz intended to convey the disputed area along with the deed-described property, in the transactions leading to ownership of 40 Locust Road by the plaintiffs.
Before moving on to the defendant's defenses and counterclaims, the court must address the alternate theory upon which the plaintiffs attempt to prevail, i.e. prescriptive easement. The court need not spend much time addressing this issue. The difference between the elements of adverse possession and the elements of a prescriptive easement is the element of exclusive use/ouster.
A claim of prescriptive easement requires proof that the claimant's use of the property has been open, visible, continuous and uninterrupted for fifteen years under a claim of right. A claim of title by adverse possession requires a claimant to prove that the owners have been ousted from possession from the property in dispute for an uninterrupted period of fifteen years under a claim of right by an open, notorious and exclusive possession. On the basis of the elements of the claim of adverse possession, the defendants focused their defense on the exclusion factor which distinguishes adverse possession from a prescriptive easement. (Citations omitted.) Francis v. Hollauer, 1 Conn.App. 693, 695-96, 475 A.2d 326 (1984).
In this case, however, exclusive use/ouster is not an issue; there was not a scintilla of evidence of any use or attempted use or claimed right of use of the disputed property by the predecessors of the defendant at least from 1972 through 2004. If there is any deficiency in the plaintiffs' proof, it does not lie in the area of exclusivity of use. Rather, the principal challenge by the defendant is to the openness/visibility of the use.
Thus, while the court's finding that the plaintiffs have proven adverse possession in a sense necessarily incorporates a determination of the necessary elements of prescriptive easement, it's does not appear to serve any substantive purpose in this case. If there is any flaw in the court's analysis of the adverse possession claim, it likely would be fatal to the prescriptive easement as well. Absent identification of such a flaw, however, the plaintiffs have proven this alternative basis for judgment in their favor.
The focus, then, must move to the defenses and counterclaims asserted by the defendant.
Special Defenses
First Special Defense
The first special defense asserted by the defendant is illegality--that many of the activities on the disputed area were prohibited by land use regulations/laws, and that that illegality should preclude a determination of adverse possession. This appears to be an appeal to the equitable aspects of an adverse possession claim.
As with the pervasiveness of the property tax issue noted in footnote 5, above, virtually every (if not every) adverse possession claim involves some level of illegality, as a claim of adverse possession begins with an activity that may be characterized as trespass, which continues for the uninterrupted period of time as set forth in the applicable statute. Although not determinative, the operative statute, § 52-575, is codified as a statute of limitations, and cuts off the right of re-entry after the rightful owner has been ousted of possession.
Conversely, the existence of illegality in a regulatory sense does not implicate any of the concerns and factors that arise under the statute. The statute gives legislatively-determined (15-year) period of time for re-entry after ouster, but after the expiration of that period, the title owner " shall be utterly disabled to make . . . entry afterwards." The presence of claimed regulatory irregularity might actually increase the likelihood that " someone" will notice the improper activities, thereby increasing the likelihood of the activities coming to the attention of the title owner (as land use agencies/officers are likely to rely on the state of title for purposes of giving notice of forbidden activities). Put another way, the prolonged period of allegedly illegal uses to which the contested area was put tends to emphasize the notoriety and openness of the use, under a claim of right, by the plaintiffs' predecessors, and the court declines to read any secondary significance into the failure of the Levees (and possibly Steinmetz/Cross) to appreciate the need for permits for horse-related activities (in what was described as horse-country in Greenwich).
Further, this court is not the proper forum for adjudicating claimed violations of land use regulations. Aside from issues of primary jurisdiction, the court is ill-equipped to determine the extent to which a claimed illegal use might be below some enforcement threshold, or might be subject to some form of waiver or exception, etc. The court also would be in a position of trying to create an alternate history was this an innocent violation, such that the user would have ceased the activity or cured the situation if someone, anyone, had simply brought the problem to the user's attention? The court is not persuaded that this defense has any applicability here.
Second Special Defense
The second special defense asserted by the defendant is laches--that the plaintiffs' predecessor should have taken steps to perfect title to the disputed area long ago, based on the decades-long use of the disputed area.
The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant. *613 First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . .
. . .
A laches defense is not . . . a substantive right that can be asserted in both legal and equitable proceedings. Laches is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law within the statutory period . . . It is an equitable defense allowed at the discretion of the trial court in cases brought in equity. John H. Kolb & Sons, Inc. v. G and L Excavating, Inc., 76 Conn.App. 599, 612-13, 821 A.2d 774 (2003) (internal quotation marks and citations, omitted).
The foregoing passages suggest that there are a number of inter-related reasons why the court does not believe that the defense is applicable here, assuming it to be a potentially available defense.
On a somewhat technical level, the 15-year period that is used for determining adverse possession is set forth in a statute, and therefore a legal rather than equitable concept. To apply laches as a limitation on a legal right is somewhat inconsistent with the maxim that equity follows the law and inconsistent with the language quoted above. On a more practical level, the statute provides that the passage of 15 years cuts off the right of the title owner to seek to oust the adverse possessor (" shall be utterly disabled to make . . . entry afterwards"), but this argument, if allowed, would require a determination that the passage of additional time would somehow allow a reinstatement of the original owner's interest despite those rights being " utterly" precluded. Or, to put it differently if almost flippantly, the argument would be tantamount to a claim that there is a limitation period for the assertion of the statutory limitation period--when it is the title owner who has a statutory " speak now or forever hold your peace" deadline.
Further, what is the prejudice (other than the literally and metaphorically perennial " property tax" issue)? Once the 15-year period has elapsed, the title owner has lost all rights to the property--other than payment of property taxes, what prejudice is possible? If the title owner had engaged in maintenance activities, had made actual use of the property, etc., not only would there have been notice of the adverse claim but there also would have been non-exclusive use by the adverse claimant. The court does not believe that laches can be based on a " you did nothing so I did nothing" type of reliance.
Somewhat simplistically, the argument would require the court to evaluate the consequences of both sides failing to assert their rights diligently, in a context where only the defendant's rights are subject to an explicit cut off, i.e. the statute governing this proceeding (§ 52-575). If nothing else, it can always be said that the defendant (and its predecessors) necessarily sat on its rights for 15 years more than did the plaintiffs and their predecessors.
To the extent that laches is not inherently inconsistent with application of a statute that contains a specific time to take action, the question of equity and prejudice would seem to focus on the defendant--and the defendant's principal was aware of the existence of a claim of adverse possession prior to the purchase of 56 Locust Road. While the court does not necessarily agree with the contention of the plaintiffs that the reason for the reduction in the purchase price was attributable to the knowledge of the claim of adverse possession to the disputed area, it is hard to characterize as prejudice the purchase of property subject to a known cloud.
Further, as already discussed in connection with the merits of the claim of the plaintiffs, the actual time frame of knowing inactivity was rather limited. As discussed in footnote 8, the earliest apparent knowledge of the existence of an encroachment onto 56 Locust Road was in or around 2002, in connection with the sale of 40 Locust Road by the Levees. By 2004, a claim was made by a predecessor of the defendant that the disputed area actually belonged to the owners of 56 Locust Road, which was rebuffed. There was a further notice in 2011, which was effectively ignored. The court cannot find this sequence of events to be sufficiently persuasive or compelling to invoke laches, again, assuming it is even permissible to do so in connection with this statutory framework.
Third Special Defense
The third special defense is predicated on the essentially-undisputed fact that the plaintiffs' predecessor in title did not explicitly convey any claimed title to the disputed parcel, notwithstanding the lengthy (and more than adequate) occupancy of the property.
The court previously has discussed some of the considerations surrounding the lack of documentation of title to the disputed area having been acquired by the plaintiffs' predecessors, and the correlative execution of affidavits negating any claims. Absent a judicial determination of title, a warranty deed would be essentially reckless and an invitation to litigation; a quitclaim deed reciting the property would be a likely invitation to litigation if not actually undermining the transaction. Related to the foregoing, any deed reciting ownership probably would have to recite that the conveyance is subject to possible claims by the record title owner. Again related, there is a likelihood that title insurance would not be available, absent a judicial determination, and any title search would necessarily necessarily identify the absence of a judicial determination as a cloud on the title to the enlarged property. But none of this would alter the statutory elimination of the record title owner's right of re-entry after 15 years.
This is perhaps an appropriate point at which to discuss other issues flowing from the " irregularity" inherent in an adverse possession claim. Again, the adverse possession claim effectively is the consequence of the expiration of a statute of limitations/repose, prior to which the title owner would have the right to have the interloper removed from the property, presumably with a permissible ancillary claim of trespass. Until there is a formal adjudication of rights, however, the " outlaw" quality permeates the situation, and especially any land-use transactions requiring involvement of third parties such as title insurance companies, mortgage loan lenders, etc. Because of the factors listed above (as well as other conceivable factors), there are secondary consequences which were explored in some depth by the defendant. In particular, notwithstanding the fact that the disputed area is not within the property description in the chain of title leading to the plaintiffs' ownership of his property, and even after plaintiffs' predecessor(s) became aware that there claimed property did not match the titled property, affidavits were executed in connection with land transactions negating the existence of any boundary disputes or claims that cast doubt on the accuracy of the recited boundaries. The affidavits included assertions relating to claims against the property as described, as well as claims of ownership beyond the boundaries described.
The court appreciates that when somebody signs a document under oath, it is supposed to be truthful, not merely convenient or expedient. At the same time, however, the court cannot disregard common sense. Assuming that documents actually were read, as opposed to being presented as documents that needed to be signed in order to effectuate the transaction and were signed on that basis only, there still remains the question of what may loosely be called " standing." The documents were executed in order to assure transaction-related third parties (lenders, title insurance companies) that there were no possible impediments to a clean transaction. Neighbors, and potential buyers of neighboring properties, were not intended beneficiaries of those affidavit-type documents. They were not intended or expected to rely on the documents, and could not have relied on the documents (except with a litigation-based hindsight).
From another perspective, the statements, though false, do not appear to have been material for purposes of the transactions in question. Any lender involved would have been told that it has less security than it might actually have for a loan i.e. its security is potentially greater than the lender believed. Any title insurance company involved would not be ensuring a risk related to the possible larger area actually being conveyed. In other words, the third parties involved in the adverse claimant's transactions would not rely on the false statements to their detriment, and a lender might be pleasantly surprised to find out that it actually has greater security for the loan than originally anticipated.
In a closer case, the existence of such affidavits might raise a real issue as to credibility, and might be perceived to be proof of the statements contained therein. However, in this case, the evidence of the adverse use, extending over decades, involving existence of readily-visible structures also for decades, overwhelms in an evidentiary/credibility sense the possible negative effects of these facially contradictory affidavits. The limited and woefully belated efforts of defendant's predecessors to assert a right of control over the disputed area (not starting until 2004), and the defendant's own recognition of the long-term history of use of the disputed area for horse-related activities (see, e.g., defendant's proposed findings of fact ¶ ¶ 29-35 and 37-38 (#167.00)), convincingly establish that any denials of claims to the disputed area set forth in these affidavits were not truly factual in nature but rather in the nature of white lies intended to facilitate/expedite the transactions in question.
Again, as something of a corollary to this claimed defense, the defendant claims that the lack of formal transfer of interest precludes so-called tacking, whereby a successor adverse possessor can take advantage of the period of adverse possession of one or more consecutive/continuous predecessor adverse possessors. That leads to a proposed conclusion that the defendant timely gave statutory notice of its title right to the disputed area, thereby terminating the plaintiffs' ability to claim 15 years of uninterrupted adverse possession.
Again, the court believes that the lack of explicit reference in the chain of title to a disputed area is relatively commonplace in adverse possession litigation. As previously discussed, until 2002 there wasn't even a recognition/awareness that the disputed area was not in fact within the deeded area of 40 Locust Road, so it is hardly surprising that deeds and any other documents predating 2002 would not contain any references to transferring an interest in the disputed area. Subsequent to 2002, the argument is but a variation on the issue of statements in affidavits--any assertion in a deed to property that was not judicially recognized as part of 40 Locust Road would be an invitation to litigation, and would require notice to any lender or title insurance company (which would complicate if not kill the transaction, given the litigation exposure).
The court finds this defense to be insufficient to warrant judgment for the defendant.
Fourth Special Defense
The defendant's next special defense is premised on the land-use consequences of recognition of the adverse possession claim under the circumstances of this case--especially, creation of two non-conforming lots, one of which is land-locked, and the non-land-locked lot being substantially out of conformity--less than 2 acres in a 4-acre-minimum zone. Although this case may be something of an extreme, even adverse possession " slivers" along a border between two properties might be enough to convert a conforming lot into a nonconforming lot, and the court is unaware of any authority for the proposition that such land-use considerations should be determinative (or even significant).
By comparison, eminent domain is not controlled by whether the remaining parcel of owned land is a conforming lot. The impact on the ability to use the remaining property will likely play a huge role in determining valuation issues, but that it is of no moment that the residual property might not have much if any potential use, for purposes of determining legality or propriety of the process. Conversely, on occasion, property owners will convey small pieces of land or slivers in order to allow a neighbor to make fuller use of his/her property, e.g., to satisfy side yard or setback requirements. In other words, while there is a certain level of overlap and interaction between land-use concepts and title concepts, the defendant has not provided any convincing authority that land-use concepts should control the court's decision in this case.
This is not the proper forum for adjudicating land use issues. There is no need to consider whether an owner could seek to obtain a comparable result by way of subdivision, as this is not in the nature of a subdivision application. (There is nothing voluntary about this division of a large parcel into smaller parcels.) What, if any, use can be made of the resulting parcels is a matter for future consideration by appropriate land use agencies--which consideration would also involve the existence of substantial wetlands and the complications caused by such. The court is compelled to reject this defense.
The defendant claims that the intended use of the property does not include development but rather use for farm purposes, thereby minimizing likely land use issues.
Fifth Special Defense
The defendant's final special defense is that that an order recognizing the plaintiffs' rights to the disputed area by adverse possession would constitute an illegal (unconstitutional) taking. Clearly, the actual acquisition of the property is not a taking by the government, such that the argument is that the enactment of a statute that authorizes one parry to obtain title to the property of another is sufficient state action to implicate jurisprudence concerning " takings." " [L]egislative enactments carry with them a strong presumption of constitutionality . . . Consequently, a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt." State v. Anderson, 319 Conn. 288, 127 A.3d 100 (2015).
The court is unaware of, and the defendant has failed to provide any, persuasive authority that the application of a statute limiting the right of reentry--the statutory authority for adverse possession--implicates constitutional prohibitions. To the extent that this is a statute of limitations/repose, the same can be true about statutes of limitations applicable to contracts and many torts. Any time a court declines to allow collection of a debt due to the expiration of the statute of limitations, it is barring the " rightful owner" from obtaining repayment of his/her property (money previously lent). When a court declines to allow a claim of conversion to proceed, due to the expiration of the statute of limitations, again, the court is barring the " rightful owner" from obtaining repayment of money wrongfully taken by a defendant. Other similar examples can be found, where a statute of limitations allows a person who in some sense is a wrongdoer to benefit from the conduct/misconduct that has become time-barred.
This court has long held that [i]t is consonant with the purpose of protecting defendants against stale claims that the legislature should enact a statute . . . which may on occasion bar an action even before the cause of action accrues. We have acknowledged that legislatures enact statutes of repose in furtherance of the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability. It is clear, however, that this rationale applies to statutes of limitation as well. Whether seen as a sanction imposed on plaintiffs who sleep on their rights or as a benefit conferred upon defendants to reduce the risk and uncertainty of liability, statutes of limitation and statutes of repose serve the same public policy of avoiding the litigation of stale claims. (Internal quotation marks and citations, omitted.) Baxter v. Sturm, Ruger & Co., Inc., 230 Conn. 335, 344, 644 A.2d 1297 (1994).
The defendant has not provided the court with any convincing analysis, supporting the proposition that the neutral application of a statute of limitations/repose runs afoul of any constitutional impediment, particularly those relating to " takings." Certainly, when compared with the time frame set forth in other such statutes, the 15-year period for reentry is relatively " generous." And as something of a reverse tautology, if the government is not taking property or otherwise asserting total control over property for its own (the public's) benefit, there is no taking by the government; cf. Kelo v. City of New London, 268 Conn. 1, 7, 843 A.2d 500 (2004) aff'd sub nom. Kelo v. City of New London, Conn., 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005) (eminent domain permissible when government takes property for public purpose (urban development) and conveys to private owner). Constitutional protections against " taking" are not implicated by neutral rules relating to the rights between private parties.
The defendant relies upon Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F.Supp.2d 206 (2002), but that is a case in which the state, itself, was the party acquiring title. Assuming that such a scenario would or at least might implicate eminent domain concerns--but see Roche v. Fairfield, 186 Conn. 490, 442 A.2d 911 (1982), recognizing the right of a municipality to acquire property by adverse possession--that does not go to the question of whether there can be a taking but whether compensation is required. More pointedly, it has nothing to do with acquisition by a private party. There is no seizure of the property by a governmental entity in this case.
The policy arguments advanced by the defendant, that the underpinnings for the concept of adverse possession no longer exist, is not a constitutional issue, notwithstanding the attempt to conflate the two. The claim that there no longer is a policy justification for adverse possession goes to the wisdom of continuation of the statute on the books, not the constitutionality of the statute and not whether this court can apply the statute to this situation. Such policy concerns should be directed to the legislative branch.
To the extent that the constitutional provisions also contain due process protection, there is no persuasive analysis as to why or how there is a lack of due process in allowing a party 15 years to take action to protect its claimed interest in real property. The statute affords an explicit mechanism for terminating the running of the 15-year period, and allows for judicial intervention (such as in this case or any other case in which adverse possession is being claimed or challenged). The existence of a period in which to take action, after which there may be adverse consequences, is (as already noted) an integral part of operation of statutes of limitation--and also is the subtext behind the concepts of waiver and abandonment.
The defendant's position also fails to give any weight to reliance-type interests of adverse users. At some point, plaintiffs' predecessors erected structures on the property, and have continued to use the disputed area, including structures, for 40+/-years. It is within the legislature's prerogative to determine the appropriate amount of time to allow a title owner to take action to protect his/her property, before giving deference/priority to the interests of the actual user of the property.
This is not a " close case" --it involves adverse use for over 30 years before anyone became aware of any irregularity in title, and 40 years prior to the litigation at hand. There is no merit to this defense.
Counterclaims
The defendant has also asserted four counterclaims: trespass (seeking damages); statutory notice interrupting the running of the 15-year period for adverse possession; declaratory relief relating to the claim of unconstitutional taking; and declaration of an easement of necessity.
The analysis thus far in this decision adequately explains why the court does not believe that the first three counterclaims have any merit. Having concluded that the plaintiffs acquired title by way of adverse possession, their superior possessory right precludes any claim of trespass. The notice given by the defendant was well beyond the 15-year period set forth in the statute, such that the notice does not and cannot affect the running of the statutory period (which had expired years if not decades earlier) nor can it affect the already-acquired superior rights of the plaintiffs. For the reasons stated as to why the court does not believe the defendant has articulated a constitutional violation/taking as a defense, declaratory relief is equally unwarranted, particularly given the high burden of proof (beyond a reasonable doubt; State v. Anderson, supra ).
At page 7 of its reply, the defendant claims that the plaintiffs' predecessors did not respond to a 2004 letter from counsel for the defendant's predecessor. Although there may not have been any expressed interest in litigation, Exhibit AA clearly states that the plaintiffs' predecessors relied on adverse possession for the continued right to use the disputed area. The 2004 and 2011 notices from counsel for defendant's predecessors (Exhibits Z and BB in 2004, and Exhibit CC in 2011) appear to have been of no legal consequence--even assuming that they were sufficiently explicit and had been recorded as required by the statute (and the court does not recall evidence of their having been recorded), § 52-575 requires that an action be commenced within one year thereafter (" provided an action is commenced thereupon within one year next after the recording of such notice") and there was no evidence or suggestion that any legal action had been commenced based on either prior notice. Note that this reinforces the court's earlier rejection of a claim of laches asserted by the defendant, in that it is reflective of defendant's predecessors' failure to act to protect their rights in a timely manner.
The only issue remaining, then, is the question of whether the defendant is entitled to a declaratory ruling that there is an easement by necessity. The applicable law and the history/rationale for determination of an easement by necessity, recently were reviewed by the Connecticut Supreme Court:
The requirements for an easement by necessity are rooted in our common law . . . [A]n easement by necessity will be imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor, or where the grantor retains an adjoining parcel which he can reach only through the lands conveyed to the grantee . . . [T]o fulfill the element of necessity, the law may be satisfied with less than the absolute need of the party claiming the [right-of-way]. The necessity element need only be a reasonable one . . . Moreover, although it is true that [a]n easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel . . . [t]he inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road through another means. The basis of the right is the presumption of a grant arising from the circumstances of the case. If the situation is such that the landowner has absolutely no access to his property except across the land of his grantor, the presumption is clear and the right undoubted. If he has such access over other land of his own, the mere fact that such access is inconvenient or expensive will not raise the presumption of a grant of a more convenient way over the land of his grantor. It may be, however, that, while access to the property is not absolutely cut off, the circumstances of the case are such that the means of access available would not afford the landowner any real beneficial enjoyment of his property. Such a situation would arise when the expense of making the means of access available would exceed the entire value of the property to which access was sought. Such a means of access would be no better than none at all, and there would seem to be equal reason for presuming a grant under such circumstances as in the case where there was no access. Although there are cases which hold that the way must be one of strict necessity, the weight of authority supports what seems to us to be the better rule--that the necessity need only to be [a] reasonable one . . .
It has been said that the test of necessity is whether the party claiming the right can at reasonable cost, on his own estate, and without trespassing on his neighbors, create a substitute . . . In most of the cases which have held that a way of necessity does not exist when a man can get to his own property through his own land, the way was sought on the grounds of convenience and economy only. [T]he necessity does not create the way, but merely furnishes evidence as to the real intention of the parties; [f]or the law will not presume that it was the intention of the parties that one should convey land to the other in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties. A way of this kind is limited by the necessity which creates it. [T]he element of necessity has been rather strictly construed and made to depend on the situation of both parties, the nature and adaptability of the property, and surrounding circumstances. The presumption as to the intent of the parties is a fiction of law, as the court recognized long ago in Robinson . . . and merely disguises the public policy that no land should be left inaccessible or incapable of being put to profitable use. Deane v. Kahn, 317 Conn. 157, 175-77, 116 A.3d 259 (2015).
Although the rule usually is expressed in terms of a conveyance creating a parcel in need of access--because that is the usual process through which an otherwise-landlocked parcel is created--the rule sometimes is stated in more general terms. Indeed, one of the cases relied upon by the plaintiffs, in opposing this counterclaim, contains just such a recitation:
(1) [T]there must be unity of ownership of the entire tract prior to division; (2) the necessity for the easement must exist at the time the unity of ownership is severed; and (3) the necessity for the particular easement must be great because implied easements have not been looked upon with favor by the courts (internal quotation marks, omitted; emphasis added). Bittle v. CAM-Colorado, LLC, 318 P.3d 65, 72, 2012 COA 93 (Colo.App. 2012).
This more general formulation, referring to severance or division, rather than conveyance, fits the situation at hand. Excerpting from the quote from Deane, supra, but invoking it in terms of a severance rather than an actual grant (or conveyance): " The basis of the right is the presumption of a grant arising from the circumstances of the case. If the situation is such that the landowner has absolutely no access to his property except across the land of [the adverse possessor], the presumption is clear and the right undoubted." From an alternate perspective: if a voluntary conveyance, wholly within the control of the grantor, can give rise to an (implied) easement of necessity, then it should be no more difficult for a party subject to an " involuntary conveyance" to establish an easement of necessity.
In Bittle, there was evidence that there was alternate access to the parcel claimed to be in need of the easement of necessity, 318 P.3d at 73. The other case relied upon by the plaintiffs, Szaraz v. Consol. R.R. Corp., 10 Ohio App.3d 89, 10 Ohio B. 112, 460 N.E.2d 1133, 1134 (Ohio Ct.App. 1983), involved access between commonly-owned parcels that had had a separate existence for decades, connected by an easement that had been eliminated by adverse possession, but without any apparent claim that either parcel was (would be) landlocked if denied the benefit of an easement connecting them (and the drawing of the area seems to show each parcel separately accessible despite the unavailability of the no-longer-existing easement connecting them).
The " circumstances of the case" before this court are " that the landowner has absolutely no access to his property except across the land of [the adverse possessor]." The property owned by the defendant at 56 Locust Road is now being severed, with the larger area inaccessible from the smaller area that has street access. Even if one were to ignore the technical difference in ownership of 52 and 56 Locust Road (the McMenamins own 52 Locust Road; an entity they formed and control owns 56 Locust Road), only the street-accessible portion of 56 Locust Road is accessible through 52 Locust Road. Exhibit 8 to trial Exhibit 52 (exhibits from deposition of Joan Passler) clearly depicts the relative locations of the parcels, and 48 Locust Road lies between 52 Locust Road and the disputed area--52 Locust Road is actually more remote from the disputed area than is the street-accessible portion of 56 Locust Road. (This also is depicted in the modified version of deposition Exhibit 17 from trial Exhibit 49, attached.) Thus, there is no possible access, even if one were to ignore the technically-distinct ownership of 52 and 56 Locust Road.
The question then moves to the nature of an easement of necessity--an easement requires specificity of location and dimensions. Certainly, it would be preferable if the parties could agree to location and dimensions, but the court cannot presume that such an agreement can be reached (and the plaintiffs' vigorous challenge the defendant's right to such an easement even if they prevail suggests a lack of potential for agreement).
In its reply brief, the defendant refers to the plaintiffs' " appetite for victory" and how that has led to certain excesses in the positions taken This may be an aspect of the case where that characterization has potential merit.
As discussed earlier, there appear to be two stone walls that form the boundaries of the disputed area, separating the disputed area from the two remaining portions of 56 Locust Road. Therefore, any access to the otherwise-landlocked parcel from the street-accessible parcel would require going through/over the stone walls or would require going around the stone walls.
Going around the stone walls would appear to be totally impractical as it would require traversing a neighboring property. There are or were some gaps in the walls allowing passage solely within the deeded description for 56 Locust Road, to the extent that the defendant was able to drive a tractor or similar equipment into the disputed area (e.g., Exhibits 32-34 showing tracks from such a vehicle). Because the location of any such opening (if still existing) is ill-defined, the court cannot make existing openings the end points for an easement of necessity (without inviting further problems), although as shown on Exhibit M, there does appear to be an opening that may be usable.
Accordingly--and again, subject to the parties agreeing otherwise--the court finds that an easement of necessity exists, and that such easement runs along the easterly boundary of the disputed area coincident with the easterly boundary described in the deed for 56 Locust Road (i.e. the easterly boundary of the disputed area excluding any consideration of the extent to which the disputed area may extend into the Caputo property); the easement is ten feet wide. Any new opening(s) in the walls shall be at the expense of the defendant and any openings intended for use by the defendant shall have a lockable gate (also at the expense of the defendant--unless the parties agree that no gate is needed) the keys to which (or other means of locking and unlocking) shall be available to the owners of both 40 Locust Road and 56 Locust Road. Any new openings in existing fences, or relocation of sections of existing fences, will be at the expense of the defendant. Any damage (ruts or otherwise) caused by the defendant's use of the easement shall be corrected/repaired at the defendant's expense. The easement shall not be paved unless the parties agree otherwise (although boards or other temporary surfaces may be used). All of the foregoing order pertaining to the easement of necessity is subject to any land-use regulations of the Town, including but not limited to wetlands regulations pertaining to the disputed area, e.g., any agreement relating to paving is subject to such regulations.
To the extent that the disputed area has been described as a trapezoid (the shape of the overlap of the disputed area and the deeded description of the defendant's property), the easement is intended to run along the shorter of the two parallel sides of the trapezoid, which also is the shortest distance between the two segments of the defendant's property. The court has attached 2 maps showing the approximate location of the easement; one is on a reduced portion of Exhibit 7 to trial Exhibit 52, and the other is a copy of Exhibit 17 from trial Exhibit 49. (A row of asterisks indicates the location.)
Conclusion
The court finds that the plaintiffs have proven, by clear and convincing evidence, their ownership of the disputed area, to the extent it overlaps the property description set forth in the defendant's deed, by virtue of adverse possession. (The court was not asked to adjudicate title to the small triangular portion of the disputed area extending onto the Caputo property.) To the extent that the difference between adverse possession and a prescriptive easement (other than burden of proof) is the requirement of exclusive use/Alastair, the plaintiffs have proven a prescriptive easement, as well. The defendant has failed to prove any of its special defenses, and therefore judgment may enter in favor of the plaintiffs on both counts.
With respect to the counterclaims, the defendant has failed to prove the first three counterclaims, but has established an easement of necessity, and the court enters judgment in favor of the defendant accordingly, the easement consisting of a 10-foot strip along the easterly boundary of the disputed area, being the area along the border as described in defendants deed starting at the wall that is generally the northerly boundary of the plaintiff's property extending into the disputed area, and the easement extending along that property line to the perpendicular wall that separates the southerly, otherwise-landlocked parcel from the disputed area (as shown on the two attachments to this decision).