140 MAIN STREET — DERBY, LLC v. CLARK DEVELOPMENT, LLC.

2005 Ct. Sup. 11738-jv
No. CV05 4003433 SConnecticut Superior Court Judicial District of Ansonia-Milford at Milford
August 30, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE APPLICATION FOR TEMPORARY INJUNCTION
HUGH C. CURRAN, JUDGE TRIAL REFEREE.

This matter comes before the court by way of an order to show cause as to why a temporary injunction should not issue.

The plaintiff, 140 Main Street — Derby, LLC, is the applicant seeking an injunction against the defendant herein, Clark Development Co., LLC. The plaintiff owns the property located at 140 Main Street, Derby. The defendant is the record owner of the property known as 148-156 Main Street, Derby. All of the properties in question are bounded on the north by Main Street, on the west by Caroline Street, and on the south by Hallock Court.

The plaintiff’s parcel is a rectangular parcel measuring approximately 62 feet by 54 feet. The rear of the property is about one story lower than the grade on Main Street. Access to the rear of the plaintiff’s property is by way of a ten-foot wide easement running from the southwest corner of the concrete pad southerly to Hallock Court. The plaintiff acquired title to the property at 140 Main Street by way of a warranty deed from one Frank Cirino dated August 31, 2004.

The defendant’s parcel is L-shaped in configuration. It is bounded on the north by Main Street, on the west by Caroline Street, and on the south by Hallock Court. It consists of three parcels shown on Exhibit 13 as Schedule D, Parcel 1, which is to the immediate south of plaintiff’s property; Schedule D, Parcel 2, which is to CT Page 11738-jw the west of Parcel 1 and separated therefrom by the ten-foot easement described in Schedule E. The third parcel is labeled as Schedule B and is to the west of plaintiff’s property. The defendant, Clark Development, purchased the property from the Estate of Alphonse Ippolito by way of an executor’s deed dated March 4, 2005 and recorded in the Derby Land Records on March 7, 2005. A bowling alley located on the easterly side of the defendant’s property and adjacent to that of the plaintiff was destroyed by fire in the year 1978. Thereafter the site was cleared and used for parking by the defendant’s employees and patrons. The River Restaurant was also destroyed by fire on December 6, 1995. The defendant’s property was rented to Housatonic Lumber Co. until the year 2000.

The principal for the plaintiff 140 Main Street Derby, LLC is Samuel Rizzitelli. Mr. Rizzitelli is an attorney, however his principal employment is with an insurance company.

The principals for Clark Development, LLC are Carl Yacoobacci, a cabinetmaker, and Philip Clark, an architect. A Redevelopment Plan of the Town of Derby includes Yaccobacci’s present location, necessitating his move. After negotiating with the Ippolitos, they both purchased the subject properties in the name of Clark Development, LLC. It is their intention to construct a multi-story building on the site housing their respective businesses as well as leasing the additional space.

Rizzitelli, upon learning of the impending acquisition of the subject property by Yaccobacci, made several phone calls to him during the fall of 2004 and the winter of 2005. His response was that he did not wish to discuss anything until he had acquired the title to the subject property. During these calls, he indicated to Yaccobacci his concern for the parking and that he did not want to be “boxed in.”

On April 2, 2005, after the defendant acquired the subject property, all three principals met. It was at this meeting that Rizzitelli announced that he owned Parcel D1 and D2 by adverse possession and thus there CT Page 11738-jx was nothing to discuss concerning any parking. It was at this meeting that adverse possession was first mentioned.

It was after this that Clark Development had their attorney send letters to the plaintiff and its tenants describing their rights as they affect the subject property. It was at this time that they proceeded to erect a fence around Parcel D1 and erect “No Parking” signs. The present action ensued.

The Connecticut General Statutes § 52-471 entitled “Granting of Injunction” reads as follows:

“Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction according to the course of proceedings in equity, in any action for equitable relief when the relief is properly demandable, returnable to any court, when the court is not in session. Upon granting of the writ, the writ shall be of force until the sitting of the court thereon unless sooner lawfully dissolved.
“(b) No injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or of some competent witness.”

“It is a cardinal principle of equity that an injunction may not issue unless to prevent substantial and irreparable injury to a complainant . . . If the injury is not substantial, equity will not interfere.”Herbert. v. Smyth, 155 Conn. 78 (1967). (Internal citations omitted.)

There must be no adequate remedy at law by way of money damages. The claimant’s rights must be reasonably clear and that the likelihood is that the claimant will prevail. It is necessary for the court to balance the equities of the case before any injunctive relief may be granted.

The evidence indicates that there is little or no dispute as to two of the parcels, Schedule E, as described on Exhibit 13, and Schedule B, as described on Exhibit 13. The defendant concedes that the plaintiff has the right to the ten-foot easement running southerly from the southwest corner of its property to Hallock Court. The plaintiff does not pursue any interest in the property described as Schedule B on Exhibit 13. This parcel is westerly of the plaintiff’s property and is known as 148-156 CT Page 11738-jy Main Street, Derby.

The basic claim made by the plaintiff is that he has acquired title to Parcels D1 and D2, Exhibit 13 by way of adverse possession.

“To establish titled by adverse possession the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own without the consent of the owner.” 1525 Highland Assoc. v. Fohl, 62 Conn.App. 612, 622. (Internal citations and quotation marks omitted.)

“Adverse possession must be proven by the claimant . . . by clear and convincing evidence.” Gemmell v. Lee, 59 Conn.App. 572, 578 . (Internal quotation marks omitted.)

The court finds that as to Parcel 2 of Schedule D, Exhibit 13, the plaintiff has failed to sustain its burden of proof. Parcels 1 and 2 are separated by the easement previously referred to. At one time there was a bowling alley that ran along the easterly boundary of the defendant’s property. The bowling alley was destroyed by a fire. Afterward, the defendant cleared the property for use as parking by his employees and patrons. Also, there was a period when the property was rented to the Housatonic Lumber Co.

Plaintiff’s predecessor testified briefly that he used the property for parking. In the opinion of the court, there was no ouster of possession and this testimony did not rise to the point of being clear and convincing.

This is not the case, however, for Parcel 1, Schedule D, Exhibit 13. This parcel lies immediately to the south of 140 Main Street — Derby, LLC, the plaintiff’s property, and easterly of the easement considered herein.

The owners of 140 Main Street — Derby, LLC both present and past and for a period in excess of 15 years have occupied the parcel to the exclusion of the defendant and his predecessors.

“A claim of right and an intent by the possessor to use property as his own are among the essential elements of adverse possession.” Palmieri v. Bulkley, 137 Conn. 40, 42 (1950).

The incident between Mr. Cirino and Mr. Ippolito, the prior owners of these respective properties, is probably the most telling of all. The CT Page 11738-kz statement of Mr. Cirino “cause that is my parking space in the back. That is my parking and do not come in and harass me. And that was the end of that.” This meeting was described by the witness as “very hostile.” Mr. Cirino continued his use of the subject property and heard nothing further from Mr. Ippolito.

There has been a continual use of the property by the owners and the tenants as well as their customers and guests. Trucks making deliveries to the occupants of 140 Main Street would have to make use of Parcel 1 in order to maneuver their vehicles into position to unload. Vehicles have been parked there, abandoned vehicles removed by all of the occupants of 140 Main Street — Derby, LLC. All of this took place at the direction and consent of the owners of 140 Main Street. The tenants further testified that without the ability to use the subject property they would have to move. Finally, the property was maintained by the owners of 140 Main Street and their tenants.

All of this occurred over a period of time well in excess of 15 years. The court finds that the plaintiff 140 Main Street — Derby, LLC has sustained its burden of proof by clear and convincing evidence and has obtained title to Parcel 1, Schedule D of Exhibit 13 by adverse possession.

The application of the plaintiff for a temporary injunction is hereby granted as to Parcel 1, Schedule D of Exhibit 13 only and the defendant is hereby enjoined from interfering with the plaintiff’s use of said parcel. The plaintiff is ordered to post a surety bond in the amount of $25,000.00.

The Court

Curran, J. CT Page 11738-ka