80 LOGAN, LLC v. ROBERT JAMES KOVACS ET AL.

2003 Ct. Sup. 8851
No. CV02 039 53 78Connecticut Superior Court, Judicial District of Fairfield at Bridgeport
July 30, 2003

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
GORMLEY, JUDGE TRIAL REFEREE.

Two cases have been consolidated in this matter involving the same general issues. The first case filed, docket number CV02-0394408 So. entitled Robert James Kovacs et al. v. Josephine C. DiNardo et al., is a title clearing action to a parcel of land which had at one time been a part of Davenport Street in the City of Bridgeport. In that case 80 Logan LLC has been made a party to the action as a result of a deed from the DiNardo interest to it of 80 Logan Street. Another defendant, Wendy Rossi, a portion of whose property bounded the now abandoned Davenport Street has been defaulted. The plaintiffs claim that they have acquired title to the disputed parcel by adverse possession.

In the second case 80 Logan LLC v. Robert James Kovacs et al., the plaintiff which acquired title to the property known as 80 Logan Street on June 15, 2002 claims that the defendants are trespassing on a portion of its property and the plaintiff seeks an injunction restraining their continued use of the property. To that claim the defendants have filed two Special Defenses, one of which is the same as the adverse possession claim referred to in the first case. They have also filed a counterclaim which minors the adverse possession claim in the first case to which the defendant has filed a Special Defense based on Connecticut General Statutes § 13a-55 which provides, “property owners bounding a discontinued or abandoned highway shall continue to have a right of way over it to the nearest or most accessible highway.”

As a point of reference the Court will utilize Plaintiff’s Exhibit 1, “a Map of Property located on Davenport Street in Bridgeport, Connecticut for Robert James Kovacs and Mary Ellen Kovacs dated May 7, 2003.” The heavy blue lines on that map are purported to be the property line of the Kovacs’ property. The map shows the T intersection of a portion of Davenport Street and Madrigal Street in the City of Bridgeport. The property to the south of the alleged southerly boundary line of the Kovacs’ property and Davenport Road is owned now by 80 Logan LLC. CT Page 8852

For purposes of this opinion the court will refer to the Kovacs as the plaintiffs and the DiNardo interests and 80 Logan LLC as the defendants.

The evidence shows that Mr. Kovacs commenced his truck repair business on Davenport Street as a tenant sometime in 1970. In 1976 he and his wife acquired title to what is shown as lots 57, 58 and 59 on Plaintiff’s Exhibit 1 in part from John Skasko and in part from CG of Conn., Inc. which ran a business known as Lombard Trucking on that property. CG of Conn. was the predecessor in title to the defendants. In 1976 Davenport Road in front of the plaintiff’s property and Madrigal Street as shown on plaintiff’s Exhibit 1 were both unpaved and unimproved. The plaintiffs had to plow and maintain Davenport Road in front of their property.

The parties agree that on September 2, 1980 the City of Bridgeport abandoned Davenport Road in from of 79-85 Davenport Road, the property owned by the plaintiffs, and previously shown as lots 57, 58 and 59 on Plaintiff’s Exhibit 1. The parties further agree that the City of Bridgeport on May 5, 1980 abandoned at least the portion of Madrigal Street as shown on Plaintiff’s Exhibit 1. (Pl. Ex. 8.) As far as the portion of the abandoned Madrigal Street as shown on Plaintiff’s Exhibit 1, the plaintiffs acquired title to all of that property in two deeds, one from William Bell dated February 12, 1981 and one from CG of Conn., Inc., dated February 17, 1981. They were respectively the owners to the north and south of Madrigal Street at the time of the abandonment and in accordance with the party’s agreement each had acquired title to the center of that street.

Based on that same agreement the plaintiffs acquired title by operation of law to the center line of the abandoned Davenport Road pursuant to their ownership of 79-85 Davenport Street and to the center line of Davenport Street west of the abandoned Madrigal Street based on their ownership of that property.

The only parcel in dispute is the rectangular parcel 25 feet by 41.11 feet shown on Plaintiff’s Exhibit 1 which is the southeasterly portion of the abandoned Davenport Road which had been bordered by land of CG of Conn., Inc., the predecessor of the defendants. It is that parcel that the plaintiffs claim they have acquired by adverse possession and which the court will refer to in the balance of this opinion as “parcel A.”

The plaintiff’s position can be summarized as follows: upon the abandonment of Davenport Road on September 2, 1980 and their title to 79-85 Davenport Street, their title to that portion of the former Madrigal Street which intersects Davenport Street and their acquisition CT Page 8853 of “parcel A” by adverse possession they now own all of the abandoned Davenport Street and can prevent any use of those premises by abutting owners. Plaintiff’s Exhibit 1 does show in the northeasterly corner of the abandoned Davenport Street a small 6-foot portion of land owned by Wendy Rossi. She has been defaulted and is no longer a party to the case.

The defendants contend that there is no evidence of adverse possession and that they still own “parcel A.” They further argue that even if the court finds for the plaintiffs on the adverse possession issue that they have a right of way over the abandoned Davenport Street pursuant to the provisions of C.G.S. § 13a-55 as it existed in 1980 which reads as follows:

Property owners bounding a discontinued or abandoned highway . . . shall continue to have a right-of way over it . . . to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.

On the issue of adverse possession to “parcel A” the plaintiffs admit that they never received a deed to that parcel from CG of Conn., Inc. as they did to a portion of the abandoned Madrigal Street. They do rely on Defendant’s Exhibit A which is a letter from CG of Conn., Inc. dated October 11, 1979 to the Bridgeport Common Council in which it states: 1) it has no objection to the future abandonment of Davenport Street which is the subject matter of the case and 2) it has no interest in the portion of the road bounding its property except for a right-of-way for maintaining and servicing its gas and sprinkler lines.

The testimony on the question of adverse possession came mainly from Mr. Kovacs and Sal DiNardo on behalf of the defendants. Kovacs described how he began his truck repair business as a tenant in the early 1970s. He acquired title to his present property in 1976. He has continuously run his truck repair business there to the present. After taking title he built a larger garage. CG of Conn., Inc. was always his neighbor to the south. On that property it ran a business called Lombard Bros., Inc., a trucking company. There was always a fence between the Kovacs’ property and CG’s with no gate allowing access to Davenport Street. That fence remains today. There is no evidence that Lombard ever entered or left its property through Davenport Street. It conveyed its property known as 80 Logan Street to Peter DiNardo sometime in 1986.

From the time of the road abandonment in 1980 Lombard never used the abandoned Davenport Street for access. Their lack of interest in the road was well expressed in Defendant’s Exhibit A. Mr. Kovacs however made CT Page 8854 total use of the entire abandoned roadbed of Davenport Street. He maintained it, paved it, used it for storage of vehicles and materials and for getting large trucks in and out of his garage. In particular, as to “parcel A” he has had continuously on that land materials, garbage containers, a body hoist and a large trailer body on barrels all blocking access from his property to the defendants. It was not until 2002 that for the first time he was accused of trespass.

On the other hand Sal DiNardo testified that his father Peter DiNardo acquired 80 Logan Street sometime in 1986. It should be noted that this property has two roads to access it, Logan Street and Read Street. Upon Peter DiNardo’s death, his estate controlled the property and in 1990 Sal DiNardo and other members of his family acquired title from the estate. From 1986 to 1990 there is no evidence that anyone on behalf of the DiNardo interests made any use of or claims to the abandoned Davenport Street.

From 1990 to 2002 Sal DiNardo, a real estate developer, appears to have managed the property for the family. He indicated that he had sporadic tenants on the property at various times. He said he inspected the property personally and at times would drive onto the abandoned Davenport Street to view the property when the gate on Logan Street was locked. There is no evidence that from 1990 to 2002 he ever had a conversation with Kovacs concerning the abandoned Davenport Street or his access to it. He never told Kovacs that he was trespassing on DiNardo property. He denied there were any objects on Parcel A blocking access. There is no evidence that Mr. DiNardo ever used or sought access from his property through the abandoned Davenport Street until sometime in 2002. There is no evidence that CG of Conn., Inc. or any of the DiNardo interests ever even once entered or departed the 80 Logan Street property through the abandoned Davenport Street property. The court concludes that based on the plaintiff’s everyday use of the property that his description of that use is the more reasonable one and the court so finds.

On June 15, 2002, the DiNardo interest sold 80 Logan Street to 80 Logan LLC an entity owned solely by Sal DiNardo’s cousin Richard Aiello. Mr. Aiello had the property surveyed. He has leased at least a portion of the 80 Logan Street property to the Laidlaw Bus Company and now 200 school buses are stored on the property. Those buses go on the roads every day and access the highway through an entrance on Logan Street. The other access from 80 Logan Street, Read Street, is not used by the buses because it is a residential area. Thus for the first time since 1980, the owners of 80 Logan Street now want to utilize the area of the abandoned Davenport Street and Davenport Street as an entrance and exit from their property. CT Page 8855

Connecticut General Statutes Section 13a-55 provides that “Property owners bounding a discontinued or abandoned highway shall continue to have a right of way over it to the nearest or most accessible highway, provided such right of way has been acquired in conjunction with a limited access highway.” (The foregoing was the statute in place when Davenport Street was abandoned in 1980.)

The effect of Section 13a-55 is to alter the common-law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access; after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway. Their easement of necessity includes the right to travel over and to improve the existing road bed. Luf v. Southbury, 188 Conn. 336 (1982); Double One Limited Partnership v. The Planning and Zoning Commission, 218 Conn. 71
(1991).

The case law is very clear and specific relative to those property owners bounding a discontinued highway as is the case with Davenport Street. “After the enactment of Section 13a-55 in 1959, the public easement over discontinued or abandoned highways ceases, but the private easement remains. The abutting owners now continue having easement of access over the discontinued highway. Insofar as the private access of necessity includes the right to travel over and to improve the existing road bed, the statute, on its face operates to preserve rather than to destroy the abutter’s right of access.” Luf v. Southbury, 188 Conn. 336, 344 (1982).

The defendant has argued that its rights under § 13a-55 can only be extinguished by deed and not adverse possession. It cites no authority for that position. On the other hand the plaintiffs cite the case o American Brass Co. v. Serra, 104 Conn. 139, 146 (1926) for the proposition that “A private easement may be extinguished by prolonged non use accompanied by an act on the part of the dominant tract showing an intent to abandon. This court concludes that a property owner’s rights under § 13a-55 may be extinguished by adverse possession as well as by deed under the proper circumstances.

The plaintiffs further argue that § 13a-55 is not applicable to this case because the defendants do not require an “easement of necessity” over the abandoned portion of Davenport Street which is the subject of this litigation because it already has access from its property by way of two existing highways, Read Street and Logan Street. CT Page 8856 The court will leave this issue until it has dealt with the issue of adverse possession which has been the cornerstone of both the plaintiff’s Complaint and Counterclaim. Both parties have briefed the longstanding principles of that doctrine and the Court will quote extensively from the briefs.

The right to acquire title to property adverse to the record owner is governed by Section 47-31 of the Connecticut General Statutes. Sub-section (b) of the statute provides that “the complaint in such action shall describe the property in question and shall state the Plaintiff’s claim, interest or title and the manner in which the Plaintiff acquired the claim, interest or title and shall name the person or persons who may claim adverse estate or interest.” Such right is limited by Section 52-575 of the Connecticut General Statutes, which is contained in Chapter 926 of the Connecticut General Statutes dealing with statutes of limitation. Said section provides, in part, as follows: (a) “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements.” In addition, “the plaintiff is required to prevail on the strength of his title and not on the weakness of his adversary’s claim.” Koennicke v. Maiorano, 43 Conn. App. 1, 9 (1996); Lowenberg v. Wallace, 147 Conn. 689 (1960).

There are numerous Connecticut cases which establish the criteria for supporting a claim of title by adverse use and possession. “The general rule concerning title by adverse possession is clearly expressed i Stevens v. Smoker, 84 Conn. 569, 574 (1911) to wit: `The essential elements of an adverse possession sufficient to create a title to the land in the adverse possessor are that the owner shall be ousted of possession and kept out uninterruptedly for a period of fifteen years, by an open, visible and exclusive possession by the adverse possessor, without the license or consent of the owner.’ `The open, notorious, uninterrupted, continuous, undisputed, peaceable and adverse possession of land for the requisite period under a claim of right will give title’ . . .” Robinson v. Myers, 156 Conn. 510, 517 (1968); Whitney v. Turmel, 180 Conn. 147, 148 (1980); Roche v. Fairfield, 186 Conn. 490, 498
(1982); Shroeder v. Taylor, 104 Conn. 605 (1926); Bridgeport Hydrualic Company v. Sciortiano, 138 Conn. 690, 695 (1952); Schlough v. Ruley, 1 Conn. App. 119, 120 (1983); Clark v. Drska, 1 Conn. App. 481, 485
(1984). See also Top of the Town, LLC v. Somers Sportsmen’s Association, Inc., 69 Conn. App. 839, 842 (2002).

“The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out of inference, but by clear and positive CT Page 8857 proof. Every presumption is in favor of possession in subordination to the title of the true owner.” Huntington v. Whalley, 29 Conn. 391 (1860). The burden on the Plaintiff to establish her claim by “clear and positive proof” has been repeatedly held by subsequent Connecticut cases Bridgeport Hydraulic Company v. Sciortino, 138 Conn. 690, 694 (1952) Robinson v. Myers, 156 Conn. 510, 517 (1968); Whitney v. Turmel, 180 Conn. 147, 148 (1980); Roche v. Fairfield, 186 Conn. 490, 498
(1982); Clark v. Drksa, 1 Conn. App. 481, 484 (1984); Wildwood Associates, Ltd. v. Esposita, 211 Conn. 36, 42 (1989); Top of the Town, LLC v. Somers Sportsmen’s Association, Inc., 69 Conn. App. 839 (2002).

“Clear and positive” proof has been equated with “clear and convincing” proof. Clark v. Drska, 1 Conn. App. 481, 487 (1984). An excellent analysis of the doctrine of “clear and positive” proof is contained in the Clark v. Drska case cited above. In establishing the parameters for “clear and positive” proof, the Court in the Clark case stated that “it could be argued that `clear and positive proof’ may be an ever higher level of proof than `clear and convincing proof.'” Ballentine’s Law Dictionary
(3d Ed.) simply defines the latter as a degree of proof higher than that of preponderance of the evidence but does not define “clear and positive proof.” “Positive” is defined as “expressed clearly or preemptorily with no doubt” in Webster’s Third New International Dictionary, whereas “convincing” is defined as “assuring by proof which so strongly supports that it seems conclusive” in the same source.

“This Court, therefore, holds that “clear and convincing proof” should be equated to “clear and positive proof.” The standard is a degree of belief that is between the belief required in the average civil case and the belief of guilt beyond the reasonable doubt required in a criminal action. Such a burden of persuasion requires a reasonable belief that “the facts asserted are highly probably true [or] that the probability that they are true . . . is substantially greater than the probability that they are false.” Lopinto v. Haines, supra, quoting Dacey v. Connecticut Bar Association, supra, 537; Wildwood Association, Ltd. v. Esposita, 211 Conn. 36, 42 (1989).

In addition to the substantial burden of proof imposed upon the Plaintiff, the record title owner is further protected by a presumption in his favor. Huntington v. Whalley, 29 Conn. 391 (1860); Clark v. Drska, 1 Conn. App. 481, 486 (1984).

Whether or not the Plaintiff has satisfied the substantial burden of proof and overcome the presumption in favor of the Defendants involves questions of fact to be determined by the trier. Whitney v. Turmel, 180 Conn. 147, 148 (1980); Roche v. Fairfield, 186 Conn. 490, 498
CT Page 8858 (1982); Clark v. Drska, 1 Conn. App. 481, 484 (1984); Schlough v. Ruley, 1 Conn. App. 119, 120 (1983).

After reviewing all of the evidence in the case the Court concluded that the plaintiffs have proved their claim of adverse possession by the requisite standard. Since at the latest July 6, 1981 when the last step in the process of the discontinuance proceedings were concluded, their use of the parcel in question has been open, notorious, uninterrupted, undisputed, peaceable and adverse up until sometime in 2002, in excess of 20 years. There is simply no evidence that since that date either CG of Conn., Inc. or the DiNardo interests have shown a single instance wherein they used the parcel in question, made any claim to it or ever used that property to enter or depart from their 80 Logan Street property. Equally clear is that the plaintiffs made a total and complete use of the property for their own business uses, paved it and maintained it.

The only possible argument the defendant has mounted against adverse possession is that the use was not adverse, but was with the consent or license of the defendants’ predecessor C.G. of Conn., Inc. They rely on a letter from CG of Conn., Inc. to the Common Council of the City of Bridgeport dated October 11, 1979. (Def. Ex. A.) In its brief at page 15, the defendant claims “evidence was presented that in 1979 C.G. of Connecticut, Inc. gave permission, consent and/or a license to use the property which is the subject of this litigation,” and that the letter dated October 11, 1979 “specifically consents to the use of the property by Mr. Kovacs . . .”

Let us look at that letter very carefully. It basically says to the Common Council that it has no objection to the abandonment of Davenport Street at its intersection with Madrigal Street. It goes on to say “we have no interest in the portion of the road bordering our property except that we have been assured by Mr. Kovacs that he will grant a right of way for purposes of maintaining and servicing our gas and sprinkler lines which are located in this area. The words “consent” or “license” simply do not appear.

The intent of the letter was clearly that a sale of this parcel was contemplated, but was not consummated. Mr. Kovacs testified that he believed this letter constituted title to him. The letter is clearly consistent with a total abandonment of any rights over the property except for the gas and sprinkler lines. That is how CG of Conn., Inc. and the plaintiffs considered it until CG conveyed its interest in 1986 to the DiNardo interests and how they treated it from then until 2002. The use of the property was only made by the Kovacs. CT Page 8859

Therefore the court finds that in the Quiet Title action the plaintiffs have acquired title to the parcel of property which is the subject of that case by adverse possession. The Court further finds they have acquired title also to the property of Wendy Rossi which is the subject matter of the case by adverse possession.

The Court further finds that in the second case 80 Logan, LLC has not proven its case by the requisite standard. Judgment shall enter on behalf of Mr. Mrs. Kovacs. In that the court has already found for the plaintiffs in the quiet title matter, there is no reason to deal with the Counterclaim in that case.

Because of the court’s disposition of the adverse possession claim it will not determine the issue of whether Conn. Gen. Stat. § 13a-55 is applicable to this case because of 80 Logan LLC’s access to Read Street and Logan Street.

GORMLEY, J.T.R. CT Page 8860