2011 Ct. Sup. 4808
No. CV06 500 21 32Connecticut Superior Court Judicial District of Fairfield at Bridgeport
February 1, 2011
MEMORANDUM OF DECISION
This is an action to quiet title by three property owners against the named plaintiff who claims to own a portion of each of the 3 named defendants’ property.
I Procedural Posture
This action was originally initiated by the named plaintiff, 98 Lords Highway, LLC (hereinafter referred to as “LLC) as a quiet title action naming, inter alia, Gary Gubner et ux, Victoria Fash and Katherine DeSousa as defendants in accordance with Section 47-31(b) of the Marketable Record Title Act (hereinafter referred to as “MRTA”). This law suit was filed on 4/7/06 and came on for trial on 9/2/10. The Gubners, Fash and DeSousa (hereinafter referred to collectively as the “defendants”) filed answers, special defenses counterclaims to LLC’s complaint and cross-complaints against the other defendants. Two days before the trial was to commence LLC withdrew its complaint. Then one day after evidence began it was learned that LLC had conveyed all its interest in its property, known as 98 Lords Highway, to Alexander Klokus by warranty deed. Thereupon plaintiffs requested the court order notice to be given to Klokus and the trial was adjourned to allow Klokus to advise the court whether or not he wished to participate in this case. Within a few days Klokus personally came to court and indicated he wished to participate in this action and requested a continuance to obtain an attorney to represent him. A short continuance was granted and the trial was again adjourned to wait the appearance of Klokus’s attorney. On 9/29/10 Klokus’ attorney filed his appearance. Thereupon the trial went forward to conclusion with Klokus being added as a party defendant. At the conclusion of evidence no motions were offered by any party and no closing statements were made as all counsel agreed to rely on their post-trial briefs. Simultaneous post-trial briefs were ordered to be filed in accordance with the CT Page 4809 court’s standing order. Further procedural facts will be added as necessary.
II. Nature of the Dispute
The plaintiffs and each of them claim to be owners in fee simple of property by reason of unbroken chains of title that go back at least 40 years from the date they filed their respective counterclaims in the present law suit. These claims are predicated on the provisions of the MRTA. In addition, Gubner alone is making a claim to land that he used for more than 15 years and which protruded into the woodland lot purportedly owned by Klokus. This claim is predicated on the common law doctrine of adverse possession. All of the plaintiffs’ deeded property abuts the Klokus property as shown on record maps #600 and #3640. The Klokus property has for some time been known among the title searching community as the “woodland lot” and will from time to time be referred to likewise. Klokus has not here claimed that there was a break in any of the plaintiffs’ chain of title as they have represented same, but rather claims that a small portion of the woodland lot overlaps onto each of the plaintiffs’ property by approximately 20 to 40 feet in width along their easterly boundaries as shown on a survey map prepared and recorded some 2 years before the institution of this law suit. This overlapping or disputed area is the main source of the dispute between the plaintiffs and the defendants but is not shown on any recorded maps other than the recently prepared perimeter map drawn by a surveyor commissioned by LLC or its predecessor in title, Ranald McNeil. Klokus further claims that this disputed area was acquired by his predecessors in title in the 18th century; that this title represented a grant of land from the King of England to one Sherwood. The plaintiffs claim that any such ancient title was extinguished by operation of law, i.e., the MRTA. The defendants maintain that MRTA is not applicable to this case because this is a case of competing chains of title and since their chain of title is longer than theirs and therefore superior to theirs. Plaintiffs have countered with evidence that Klokus’ purported chain of title was broken in 1970 when a deed thought to convey the woodland lot to Klokus’ predecessors in title, actually conveyed a piece known as the “Jalapeno” lot. They point to certain record and assessors maps that locate the Jalapeno lot far to the northeast of the woodland lot. Consequently, they claim Klokus never ever had any interest in the woodland lot which in turn raises an issue of Klokus’ standing in this case. Finally, the defendant LLC claims that the court cannot grant the relief sought by the plaintiffs under MRTA because CT Page 4810 the plaintiffs have failed to join an indispensable party (Muller) in this law suit — a person whom plaintiffs claim is the true owner of the woodland lot. According to the Joint Trial Management Report all material facts relating to these claims are in dispute.
Although the joinder issue was raised by LLC as its first argument in its post-trial brief and the court would have ordinarily addressed that issue first, however, under the procedural circumstances of this case, it is thought best that the court reserve decision on this issue until other issues are resolved. Instead the court will first address the procedural issues as they relate to the changing focus of the case and roles of the parties following the withdrawal of LLC’s complaint. Once the dust has settled as to who owns what, the court will be in a much better position to address the non-joinder issue.
III. The Changing Roles Focus
LLC withdrew its action to quiet its title to the woodland lot on 8/31/10. Just prior to the withdrawal, Walpuck also personally filed a release of lis pendens on the plaintiffs’ properties on the land records. This was followed in short order by plaintiffs Gubner and DeSousa withdrawing their CUTPA counterclaims against LLC and DeSousa withdrawing her CUTPA cross-complaints against 100 Lords Highway, LLC and 102 Lords Highway, LLC defendant cross-claimants on 9/30/10. On or about 9/19/10 Alexander Klokus was permitted to intervene in this case as a party defendant. Thereafter and throughout this trial Mr. Klokus has been represented by counsel. No formal pleadings including motions, answers, special defenses or cross-complaints were ever filed on behalf of Klokus. During discussions between the Court and the parties regarding the matter of Klokus’ entry into the case and LLC’s the withdrawal, LLC’s attorney admitted that he understood his new role in this case to be that of a defendant.
It is therefore abundantly clear from these facts that the roles of the parties have been reversed from what they had been initially. LLC was initially a plaintiff affirmatively pursuing a quiet title action and Gubner, Fash and DeSousa were initially defendants contesting LLC’s quiet title action and affirmatively pursuing their own counterclaims under 47-31 et seq. (the marketable record title act hereinafter referred to as “MRTA”). Now, because of this procedural maneuvering, LLC has completely and knowingly assumed a CT Page 481 defensive role of contesting the plaintiffs’ marketable title claims. Conversely, Gubner, Fash and DeSousa, after being relieved of their special defenses by LLC’s withdrawal and withdrawing their CUTPA counterclaims and cross-complaints, have assumed the roles of plaintiffs in this action while continuing to assume the burden of proving their titles to be marketable.
It is a fundamental rule of procedure that the pleadings establish the parameters of the case. Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496 (1944). So then, what effect, if any, did these procedural events have on Klokus’ role in this case? By virtue of his newly acquired purported ownership interest in the woodland lot, he had a right to pursue a quiet title action on a cross-complaint against the three plaintiffs. 47-31(a). Because he was a new party in this case, he did not succeed to LLC’s pleadings (i.e., his appearance in this case was not in lieu of LLC’s). Consequently, he could not take advantage of LLC’s pre-withdrawal pleadings. Therefore, if he wished to seek a settlement of his title, he would have had t affirmatively do so by filing such a claim against the plaintiffs. 47-32. Of course, in doing so, he would also have to assume the additional burden of proving this claim. His counsel apparently made the strategic decision not to pursue a quiet title action and in doing so relegated his client to the role of merely contesting plaintiffs’ quiet title.
Now, what effect do these procedural events have on the defendants’ theory of defense? Their primary argument is that the MRTA is inapplicable to this case because this case involves a dispute over two competing titles. This argument conveniently ignores the significance of the procedural mechanizations engaged in this case and by doing so the defendants have unwittingly undermined their primary theory of defense.
The most important factor supporting this conclusion is that LLC withdrew its claim of an unbroken chain of title back to the King’s grant when it withdrew from the case. The result was to remove the focus on defendant LLC’s chain of title leaving only one chain of title in dispute. i.e., the combined chains of title of each of the counterclaim plaintiffs. To compound the problem, Klokus failed to revive LLC’s quiet title claim by failing to file a cross-complaint to plaintiffs’ counterclaims to seek a settlement of his own title. Normad Josef Enterprises, Inc., v. Connecticut National Bank, supra. In addition, after the revelation of LLC’s withdrawal, its attorney admitted on the record that his CT Page 4812 client’s new position in the case was that of a defendant
solely for the purpose of defending LLC’s warranty in the conveyance to Klokus. These acts virtually concede the defendants’ collective roles in the case to be one limited to challenging each plaintiff’s proof of their claims to quiet their respective titles and Gubner’s proof of his adverse possession claim.
Klokus’ argument, although adopting LLC’s primary argument
offers a variation on LLC’s theme regarding the applicability of MRTA. The essence of his argument, at pages 6 and 7 of his post-trial brief, is that MRTA is not applicable to this case because the plaintiffs never acquired title to the disputed area from their unspecified predecessors in title and therefore cannot now use the MRTA to enlarge their titles citing Il Giardino, LLC v. The Belle Haven Land Co., 254 Conn. 502 (2000), in support of this position. This argument is disingenuous. It presupposes that at some point during plaintiffs’ 40-year plus chains of title, the overlapping disputed area which is shown on surveys prepared by Spath and Meehan did in fact exist and were identified under the names of its record owners independent of the Staph survey. Klokus has offered no evidence that such was the case. Nor have the defendants offered any evidence that such a circumstance would have likely been found by a prudent title searcher of plaintiffs‘ titles during the 40-year plus period. This was especially relevant in view of plaintiffs’ expert title searcher’s opinion that his search of plaintiffs’ titles revealed nothing that would divest them of their respective titles. Defendants presented no expert title searcher to offer a contrary opinion. Inasmuch as plaintiffs’ expert opinion on this is issue was credible and went unchallenged, the court accepts it as a proven fact.
Furthermore, Klokus’ reliance on Il Giardino, supra, is misplaced because it is factually distinguishable. That case involved an identified easement that the claiman clearly knew he did not own. Unlike Il Giardino there is no creditable evidence offered by the defendants that the purported overlap was identifiable or that the plaintiffs’ had knowledge that they did not own the entire breadth of their lots as depicted on the various record maps concerning their properties during their respective chains of title. For all of the foregoing reasons this court finds that Klokus’ argument regarding the inapplicability of MRTA to this case to be unavailing.
Therefore, for the reasons herein expressed, it is clear CT Page 4813 that there is but one chain of title involved in this case, that being the record chains associated with Fash, DeSousa and Gubner. Accordingly, the court must reject the defendants’ theory of the case as expressed by each defendant in their respective post-trial briefs regarding the applicability of MRTA. Furthermore, because the court concludes that arguments #3 and #4 contained in LLC’s brief are dependant upon a favorable decision on this theory of defense, the court rejects them as well. Finally, the court concludes, as a matter of law, that the MRTA is applicable to this case. 47-31.
The foregoing disposition clears the way for the court to address what it believes to be the remaining issues in this case: (a) Whether each plaintiff has proven by the requisite standard of proof a marketable title to their respective properties, (b) whether their titles are subject to the exception to their marketable title as provided in 47-33d and 47-33f, (3) whether Gubner has proven his claim of adverse possession by the requisite standard of proof, and (4) whether the plaintiff’s failure to join a non-party who may have an adverse interest that may be affected by plaintiff’s law suit will preclude the court from granting a judgment pursuant to 47-31(b). Finally, there are other issues in this case not here mentioned which the court will not address other than to identify them and explain why they were not addressed.
Each of the three plaintiffs in this case predicate their counterclaims on MRTA. Under that act one must prove (1) that the property in question had an unbroken chain of title fo at least 40 years back from the date on when marketability is to be determined. 47-33b. The marketability date in this case would be the same for all three plaintiffs since that’s the date this law suit was instituted, to wit: 2006. 47-33c.
(2) The title must be traced back to what is known as the “root of title” i.e., the most recent title transaction or conveyance to be recorded as of a date at least 40 years prior to the time marketability is being determined. 47-33b(e). The effective date of the root of title is the date on which it was recorded. 47-33b(e). (3) The burden of proving these facts is by a fair preponderance of the evidence. Devita v. Esposito, 13 Conn.App. 101, 108 (1987); see also, Cook v. Connecticut Children’s Med. Ctr., No. CV094010592S (Jul 27, 2010). Furthermore, the claimant must prevail on the strength of his own CT Page 4814 title, not the weakness of his opponent’s title or interest Lake Garda Improvement Ass’n v. Battistoni, 155 Conn. 287, 293 (1966); Loewenberg v. Wallace, 147 Conn. 689, 698 (1960).
Therefore, if a claimant complies with all of the essentials of this statutory cause of action, his title is unassailable by one who may have acquired an interest in the same land prior the effective date of the claimant’s root title, 47-33e; Loewenberg v. Wallace, 147 Conn. 689, 698 (1960).
Further, Section 47-33k provides that the act is to be construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title without the necessity of going all the way back to the King’s grant every time there was a title transaction. Particularly a propos to this case is the comment in The Connecticut Standards of Title referring to the act in Section 3.1 of the standards saying: “[t]he Marketable Record Title Act . . . is comprehensive in its approach to eliminatin ancient and stale title claims.”
To effectuate that purpose Section 47-33e provides in pertinent part:
Sec. 47-33e. Prior interests void. Subject to the matters stated in Section 47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims . . . whatsover . . . All such interests, claims . . . however denominated, . . . are hereby declared to be null and void.
The act clearly carves out an exception to its general rule which is embodied in Section 47-33d. The court will fully address this issue in the next section of this opinion. At this juncture, however, a discussion of the facts relevant to whether each plaintiff has presented sufficient evidence to satisfy the aforementioned requirements is in order.
The Fash Chain of Title
The following title documents were offered by Fash as proof of her unbroken chain of title and reviewed by the court: Victoria Fash first purchased her property known as Lot 8A 9/1/93 and Lot 9A on 4/28/94 from Lawrence Dorothy Paulett by 2 warranty deeds, one for CT Page 4815 each lot. Now going backward in time to her root deeds to 4/2/51 from Rogues Ridge two lots to Gerald Betty Muscot by warranty deed in survivorship; thenc forward to 3/10/76 when Gerald passed away leaving Betty to succeed by survivorship to sole ownership of both lots; thence to 9/15/78 from Betty Muscott both lots to Victor Shirley Goldsmith by warranty deed; thence to 5/3/83 from the Goldsmiths Lot 8A to Lawrence Dorothy Paulet by warranty deed; thence to 4/26/85 when the Goldsmiths conveyed the second lot (Lot 9A) to Lawrence Dorothy Paulet by warranty deed; thence to 9/1/93 from the Paulets Lot 8A to Victoria Fash by warranty deed; thence to 4/28/94 from the Paulets to Victoria Fash Lot 9A by warranty deed; thence to 3/10/96 from Victoria Fash Lot 8A to Fash, Trustee by Quitclaim deed; and on the same date from Victoria Fash Lot 9A to Fash Trustee by Quitclaim deed.
Thus, we have come full circle and the foregoing Fash chain of title is found to be unbroken from the 1951 root deed to 2006 when Fash filed her counterclaim to quiet title a period of some 55 years. Accordingly, the court concludes that such chain of title is sufficient to establish a good and marketable title in accordance with the opinion of plaintiffs’ expert and within the provisions of Section 47-33b CGS, subject only to the provisions of Section 47-33d which subject the court will address in the next section of this decision.
DeSousa Chain of Title
DeSousa has offered the following title documents as proof of her unbroken chain of title. The court has scrupulously reviewed these documents and the testimony of the plaintiffs title expert testimony and his opinions relating to these documents and finds the following facts.
Katherine DeSousa, first purchased her property from the Estate of Peter M. Frasier, Jr. by executor’s deed recorded on the Wilton land records on 2/15/54 as shown on record map 1272. Although it was unnecessary to establish a marketable title further back than the claimant’s root deed,  plaintiffs’ expert nevertheless searched DeSousa’s title back some 57 years to a deed from Peter C. Robinson to Rogues Ridge Properties, Inc. and recorded on 8/31/49. Rogues Ridge Properties, Inc. subsequently conveyed a 2-acre portion of the Rogues Ridge lot and designated it lot 10 on record map 600 to Wickliffe and Frances Crider by CT Page 4816 warranty deed recorded 9/21/49. Thence forward in time to 4/24/54 from the Criders to Petersen, Jr. and Suzanne Marzoni by warranty deed recorded on 4/23/54; thence to 12/2/55 from the Marzoni’s to Donald and Ruth Sarbach by warranty deed; thence to 9/25/58 from the Sarbachs to William L. Beamer, Jr. by warranty deed thence to 3/20/64 from Wm. Beamer, Jr. to William L. Fraser, Jr. by warranty deed where the subject property was designated as Plot `10′ on a survey map prepared for Wm. Beamer, Jr. and recorded on 9/25/58. This deed is DeSousa’s root deed for purposes of the Marketable title Act.
On Aug 17, 1983 Peter M. Fraser passed away. The subject property was conveyed to Katherine DeSousa by executor’s deed
recorded on Feb 15, 1984 making reference in the description to record map 1272. Thus, we have come full circle from DeSousa’s root deed (Beamer, Jr. to Fraser) recorded in 1964 to the date this law suit was filed in 2006. Based on this evidence and the opinion of plaintiff’s title expert her chain of title remained unbroken for a span of some 42 years. Accordingly, this court finds that DeSousa has established a marketable title to lot 10 as shown on record map 600 or alternatively as shown on record map 1272 in accordance with the Marketable Title Act, 47-33c, subject only to the provisions of 47-33d which issue is addressed in the next section of this decision.
Gubner’s Chain of Title
Gubner has offered the following title documents as proof of his unbroken chain of title. The court has scrupulously reviewed these documents together with testimony of plaintiffs’ expert’s testimony relevant to these documents and finds the following facts. Gary Gubner first purchased the subject property known as Lot 7 on record map 600 (Exhibit C-2) by warranty deed from Employee Transfer Corp and recorded on June 18, 1980. Plaintiffs, expert then traced his title back to a 1949 deed from Peter Robinson, et ux to Rogues Ridge, Properties, Inc. This lot contained some 29 acres. It was subsequently sub-divided into 10 lots. Rogues Ridge Properties conveyed Lot 7 in this sub-division to Ruverna Sturges by warranty deed recorded on December 15, 1950. This deed is Gubner’s root of title deed. 47-33c. Sturges conveyed the same lot 7 to Jack and Janet Swezey by warranty deed recorded 5/1/73; and thence to 6/29/79 the same lot to John Lox et al by warranty deed; thence to 3/21/1980 when Lox et al. conveyed the same lot to Employee Transfer Corporation by warranty deed recorded on. This grantee conveyed lot 7 to Gary and Beverly Gubner by warranty deed in survivorship recorded CT Page 4817 on June 18, 1980. Beverly Gubner has since passed away and Gary has succeeded to her interest in lot 7 by survivorship. Gary is the sole owner of lot 7 at present. Again we have come full circle from the recording of his root deed to Lot 7 of his root deed in 1950 to the date when this law suit was brought in 2006. During this entire period of some 56 years according to this court’s examination of the title documents and plaintiffs’ expert’s opinion,  there has been no break in his chain of title. These facts went uncontroverted by the defendants. Accordingly, this court concludes that Gubner has proven by the requisite standard of proof that he has a good and marketable title to Lot 7 as shown on map 600 recorded in the Weston Town Clerk’s office subject only to the provisions of 47-33d which issue the court will address in the next section of this decision.
It is to be noted that the easterly boundaries in all deeds in the Fash, DeSousa and Gubner chains of title is also the westerly boundary of property commonly referred to as the “Woodland Lot” formerly owned by the Estate of Edith Gifford through which entity the defendants herein claim their title flows.
V. The effect of 47-33d on plaintiffs’ claims
Section 47-33d provides in pertinent part:
Interest to which title is subject. Such marketable record title is subject to: (1) All interests . . . which are created by or arise out of monuments of which the chain of title is formed; . . . (2) all interests preserved by the recording of proper notice . . . in accordance with Section 47-33f; . . . (4) any interest arising out of a title transaction which has been recorded subsequent to the effective date of the root of title from which the unbroken chain of title of record is started; . . . (emphasis added)
And 47-33f to which the above section specifically refers provides in pertinent part:
Notice of claim filed within forty-year period. (a) Any person claiming an interest of any kind in land may preserve and keep effective that interest by recording, during the forty-year period immediately following the effective date of the root of title of the person whose record title would otherwise be marketable, a notice in writing, duly verified by oath, setting forth the nature of the claim . . . (Emphasis added.) CT Page 4818
Also relevant to this discussion is the statutory requirements setting forth the mandatory content of the 47-33f notice and where it is to be recorded.
Sec. 47-33g. Contents of notice. Recording. Indexing. (a) To be effective and to be entitled to recordation, the notice referred to in Section 47-33f shall contain an accurate and full description of all land affected by the notice, . . . In addition, each notice shall clearly state the then owner or owners of record of the property involved. (b) Each notice shall be recorded in the land records of the town where the land described therein is located. The notice shall be indexed in the grantors’ index under the names of the owners of record as listed in the notice and in the grantee’s index under the name of the claimant appearing in the notice. (Emphasis added.)
The evidence before the court is devoid of any evidence that Klokus or any of his predecessors in title ever complied with any of the above statutory requirements necessary to preserve any ancient title interest from which Klokus claims any present interest in the disputed area as shown on record map #3640.
Based on the abovementioned statutory requirements the only way the defendants can successfully challenge the plaintiffs’ marketable title is to prove that the ancient title to which they aspire was preserved by recording a specific notice of that claim somewhere in the plaintiffs’ chain of title sometime during the 40 year period next preceding the time when their respective chains of title started. 47-33d. See also, e.g., Johnson v Sourignamath, 90 Conn.App. 388, 399 (2005). That would be sometime between the date of the recording of the plaintiff’s root of title deed and the date on which this suit was filed, i.e., April 2006. 47-33c. The record is devoid of any such evidence. And, for the reasons expressed herein the court therefore concludes that their respective marketable titles are, as a matter of law not subject to the provisions of 47-33d.
The only evidence the defendants might attempt to rely on is the recording of the Spath perimeter survey map #3640 (exhibit 26) in 2004. This reliance is sadly misplaced for several reasons.
1. A survey is not a title transaction within the meaning of 47-33b(f) which provides in pertinent part:
CT Page 4819 “Title transaction” means any transaction affecting title to any interest in land including, but not limited to, title b will or descent, by public sale . . . executors,’ administrator’s . . . or committee deed, by warranty or quitclaim deed, by mortgage or by decree of any court. (Emphasis added.)
The Spath survey clearly is not the type of document contemplated by this definition.
2. The document itself is not a title document as contemplated by 47-33c in that it is incapable of conveying or transferring an interest in land.
3. The survey in question was not prepared under oath per 47-33f(a).
4. Nor does it set forth in writing the nature of the claim per 47-33f.
According to Plaintiffs’ expert, Meehan, the Spath survey was severely flawed primarily because of his reliance on McNeil’s research instead of conducting his own independent title searches. This opinion is in accord with Judge Healey’s comment in the case o Medway Associates v. Shoneck et al., No 234874 Sup.Ct. JD New Haven (1992) at 54, where the court appears to support rejection of a survey in which the surveyor failed to personally search the titles of properties supporting his survey map. See also State v. Midkiff, 421 P.2d 550, 560 (HW, 1960) (cited in the Medway decision at 55). Spath admitted that he relied upon McNeil’s research in part in preparing his survey.
Furthermore, he failed to determine the accuracy of that part of McNeil’s research upon which he relied by independent means. Both Judge Healey’s comment in Medway, supra, and the Meehan opinion agree that the Staph survey is an unreliable document and should be rejected. This court agrees. Accordingly, for the purposes of establishing accurate boundaries of the so called disputed area in this case it is hereby rejected.
At most, the Spath survey is but a cloud upon the title of each of the three plaintiffs. That is, the recording of this document on the land records would naturally prompt a prudent land owner to seek litigation to remove it. See, e.g., Har v. Boreiko, 118 Conn.App. 787, 797-98 (2010). The proper means of accomplishing that is by bringing a quiet title action. 47-31(a). They have done CT Page 4820 just that. And, in such an action this court has rejected the only impediment remaining that could affect plaintiffs’ titles. Accordingly, the court concludes that the plaintiffs have proven by a fair preponderance of the evidence that each have marketable titles to their respective properties as shown on record maps, offered by them in evidence.
VI. The Gubner Adverse Possession Claim
In 1980 Mr. Gubner purchased 31 Rogues Ridge Road, also known as Lot # 7 as shown on record map #600 by warranty deed which map also depicted the boundaries of Lot 7. This map was prepared and filed for record in 1949, some 30 years before he took title. Although this map was available to him at or before the closing he did not review it in detail but did consult it from time to time at the town clerk’s office and as a result becam generally aware of the boundaries of his property. On his property at the time of the purchase was a swimming pool which had been constructed by a previous owner in an undisputed area of his lot and was in a state of disrepair. Gubner subsequently dismantled the pool with the intent of building a new pool somewhere near his easterly boundary and landscaping the area so that it could be used as a play area for his children. He subsequently used the remnants of that old pool from which to calculate his easterly most boundary. Once locating what he thought to be his eastern boundary.
Gubner began making permanent improvements to the land including, clearing the area of underbrush, cutting some trees down, planting a lawn, trees and a garden, constructing a new above ground swimming pool with an above ground deck supported by posts driven into the ground. He also installed a fence around part of the perimeter of the area for the sole purpose of keeping his dog from chasing the deer that would come on his “property.” He and his family continuously used and maintained this area for recreational purposes from approximately 1982 until the present time. However, most of the improvements he made to this area turned out to be on the easterly side of his deeded boundary as shown on a survey map which had been commissioned by his attorneys in preparation for this law suit. Until shortly before this suit was instituted he had no idea that the area he was using was allegedly wrongful.
According to Gubner, the entire area to the east of the area he cleared consisted of thick forest land. TR ___*___. CT Page 4821
During the entire period he occupied the property he saw no person on the neighboring property to the east with the one exception of a stranger looking for his dog. TR ___*___. In fact, he did not know who his neighbors were to the east. TR ___*___. Furthermore he apparently could not see anyone or anything beyond the forest. TR ___*___. He never asked anyone for permission to use the disputed area because he believed he owned it. Additional facts will be added as needed.
It is well-settled that 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 an open, visible and exclusive possession of the claimant without license or consent of the owner.” Anderson v. Poirier, 121 Conn.App. 748, 752 (2010), cert. denied, 298 Conn. 904 (2010) Robinson v. Aubin, 120 Conn.App. 748, 752 (2010).
And, the party claiming adverse possession, unlike the burden of proof in a quiet title action,’ must prove each of these elements by clear and convincing evidence. Robinson v. Aubin, 120 Conn.App. 72, 74 (2010), Rudder v. Manasasco Lake Park Ass’n, Inc., 93 Conn.App. 759, 780-81 (2006). That burden is satisfied if the evidence:
. . . induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . .
Schlichting v. Cotter, 109 Conn.App. 361, 365 cert denied, 289 Conn 944 (2008) (emphasis added).
There is no doubt that Gubner occupied/possessed the disputed area set forth in Meehan’s partial perimeter survey uninterruptedly for more than 15 years. Gubner’s problem emanates from the “open and visible” requirement. The test to be applied is whether possession and use was sufficiently apparent to make the reasonably prudent true owner aware that his property was in jeopardy by the claimant’s CT Page 4822 activities. As Schlichting, supra, points out at 368:
The legal significance of the open and visible element is not . . . an inquiry as to whether a record owner subjectively
possessed an understanding that that a claimant was attempting to claim the owner’s property as his own. Rather, the open and visible element requires a fact finder to examine the extent and visibility of the claimant’s use of the record owner’s property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own . . . “The purpose of the `open,’ `visible,’ and `notorious’ requirements . . . is to provide the true owner with adequate notice that a trespass is occurring, and that the owner’s property rights are in jeopardy. Hence, a claimant will fail to satisfy these requirements unless the possession and use were sufficiently apparent to put the true owner on notice that the claimant was making an adverse claim of ownership.”
So, was Gubner’s possession and use open, visible and notorious according to the abovementioned guidelines. The answer to that question is no under the factual circumstance of this case. Gubner admitted that the entire area on his easterly boundary consisted of thick forest land; that he could not see beyond the forest for the trees. There is no evidence that there was a road or path on or near the disputed area or any other means by which one might from time to time view the permanent improvements that Gubner was making. Therefore, from an objective prospective, it was unlikely that a reasonably prudent owner would have noticed Gubner’s activities or the effect they might have on his ownership rights. See, e.g., Robinson v. Myers, 156 Conn. 510, 518-19 (1968). But remember, it is Gubner’s
duty, not the true owner’s to convince the trier that the true owner would have in fact noticed his doings and appreciated their consequences if continued for at least 15 years Schlichting, supra. In army parlance, Gubner was “in the boondocks.” Under such circumstances, he was required to take extraordinary measures to put an owner on notice that owner’s property rights were in jeopardy. The court has been unable to find a scintilla of evidence in the record to support a finding on that account. Consequently, the court concludes that Gubner has failed to carry his burden on this requirement. That being the case, there is no need to inquire about the proof of any of the other elements. Accordingly, for the reasons expressed herein, this court is compelled to enter judgment against Gubner on his claim of ownership to the approximately 20′ feet of land east of the boundary CT Page 4823 lines as shown on exhibit I.
The court having disposed of the issues relating to the applicability of MRTA, the effect of 47-33d on plaintiffs’ marketable title and Gubner’s adverse possession claim, it is now prepared to address the joinder issue.
VII. The Joinder Question
Both defendants have raised this issue in their post-trial briefs claiming that the court cannot enter a judgment in this case unless a non-party, one Robert Muller whose interests could be adversely affected by a favorable judgment on their quiet title action and point to 47-31 as authority for this position. The court disagrees.
47-31 provides in pertinent part:
Sec-47-31. Action to settle title or claim interest in real . . . property.
(a) An action may be brought by any person claiming title to, . . . real Property . . . against any person who may claim to own the property, or any part of it, or to have any estate in it, . . adverse to the plaintiff, against any person in whom the land records disclose any interest, . . . or title conflicting with the plaintiffs claim, title or interest, for the purpose of determining such adverse estate . . .
(b) The complaint in such action shall . . . name the person or persons who may claim the adverse estate or interest
. . . (Emphasis added)
At first blush this section appears to mandate the joinder of all persons who may have an interest adversely affected by the outcome of a quiet title action. However, if the emphasized language is seriously considered, one must conclude that joinder is not required unless the non-party’s interest are adversely affected by or will be in conflict with a plaintiff’s interest Gandolfo v. Barker, 209 Ct.Sup. 11314, No. HHD-CV-06-5003862S, Sheldon, J. JD. Hartford (July 7, 2009). That court, in interpreting 47-31 observed:
. . . nothing in this provision even suggests, much less requires, that the plaintiff . . . join as a defendant any persons who claim CT Page 4824 an interest in the property, that is not to the plaintiff’s own alleged interest therin.” Supra, 11318.
But who has the responsibility to determine whether or not a non-party’s interest is to be adversely affected? Our supreme court has answered that question in the case of Swenson v. Dittner, 183 Conn. 289, 292 (1981), where it held:
An action to quiet title is a statutory action instituted under the provisions of General Statutes Section 47-31. The statute requires the plaintiffs to name the person or persons who may claim such adverse estate or interest . . . So that the trial court can make a full determination of the rights of the parties to the land, an action to quiet title is brought against persons who claim title to or have an interest in the land . . . Only the parties to an action to quiet title are bound by the judgment . . . The failure to include [parties to such an action] is not erro because the decision to join a party in a suit to quiet title is made by the plaintiff.” (Emphasis added, Citations omitted.)
It is hornbook law that a judgment cannot bind any person who has not first been given the opportunity to be heard. Angiolillio v. Buckmiller, 102 Conn.App. 697, 712-13, cert. denied, 284 Conn. 927 (2007). Therefore, regardless of the provisions of 47-31, only parties that are joined in a quiet title action are bound by the judgment therein. Swenson v. Dittner supra.
It is a well settled rule of statutory construction that a statute ought to be so construed, that if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant Barstow v. Adams, 2 Day (Conn.) 70, 98 (1805). The meaning to be ascribed to this section amounts to a clear but advisory
warning to plaintiffs of what consequences will befall them should they ignore the caveat expressed in 47-31. That is, if they determine a non-party’s interests will not be adversely affected by their action, but it later turns out that his interests were adversely affected, ignoring the advisory will result in a judgment binding only on those who have been joined. Swenson supra.
Therefore the reasoning is that since it is in the best interests of a plaintiff in bringing a quiet title action to join all persons known to them whose interest they believe may be adversely CT Page 4825 affected by or in conflict with the judgment they seek, the they, the plaintiffs, should have the ultimate responsibility to make that determination. This seems to be logical inasmuch as they are the only ones taking the risk of a bad judgment as this court pointed out to these plaintiffs early in this case
albeit that caveat did not concern the joinder of Muller. They obviously accepted the risk inasmuch as they chose not to name or join Muller in this lawsuit.
For all of the reasons herein expressed, the court must reject the defendants claim as it concludes that Muller’s joinder in this suit was not required under 47-31. Swenson v. Dittner supra; Gandolfo v. Barker, supra.
VIII. Issues not addressed
There were two issues on which both parties spent an awful lot of time. After an exhaustive analysis of the evidence in the case and the theories urged upon the court in pursuing these issues, it was clear to this court that even if one side or the other prevailed on these issues, it would not be dispositive of the case. Consequently, the court has declined to address the following issues raised by one or more of the parties to this action.
First, there is the issue of whether or not Klokus had any ownership interest in the woodland lot. This, of course, depended upon the construction of the 1970 S and T deeds and whether Mr. Green, through whom Klokus claimed his title, actually received the woodland lot in that title transaction. If he actually received the Jalapeno lot instead of the woodland lot as the plaintiffs contended, then the question of the defendants’ standing would be at issue. Therefore a decision adverse to the defendants on this question would have prompted an immediate judgment excluding them from further participation in this law suit as well as possibly depriving the plaintiffs of a judgment on the merits against the defendants. However, despite a favorable plaintiffs’ ruling on this issue, this would not be dispositive of the case. As pointed out earlier in this decision, in order to prevail in their quiet title action, the plaintiffs must do so on the strength of their own case, not on the weakness of the defendants’ case Schlichting v. Cotter, supra. On the other hand, if the defendants prevailed on the ownership question, that would not end the case either. They too would still have to prove their entitlement to the 47-33d exception in order to preserve any ancient rights to the disputed area. Based on the court’s resolution of the CT Page 4826 issues it has already addressed, they could not ultimately prevail on that account. So, no matter what the court’s ruling turned out to be in this procedural issue, it would have had no dispositive effect on the case.
Second, the defendants claimed to prove that their title to the disputed area was properly derived from ancient deeds from the King of England. Assuming arguendo, that they were successful in that venture, they would still have to prove that such title was preserved under the provisions of 47-33d in order to establish that their title to the disputed area was preserved and was therefore superior to the plaintiffs’. The proof of ancient titles, although interesting from a historical prospective, was merely a distraction — one might even say an exhausting distraction from a decisive issue in this case which was: whether or not the defendants could overcome the notice requirements of 47-33d or establish some credible evidence that a prudent title searcher would have found evidence of defendants title in any of the plaintiffs’ chains of title. Again, based on the evidence they themselves produced or more precisely, that they failed to produce, they could not have prevailed against the strength of the plaintiffs’ evidence under MRTA. Here too, like the previous issue this too proved not to be dispositive of the case and therefore the court was not obliged to address it. Paraphrasing an advertising slogan that seems to be in vogue to emphasize the point: 47-33d was the 800 pound gorilla in the courtroom and the party that ignores that, does so at his peril.
Therefore, for all of the reasons expressed in this decision the court is compelled to enter judgment in favor of each of the plaintiffs claims to quiet title and declares their titles settled as follows.
As to Victoria Fash
As to the first parcel.
Victoria Fash has a good and marketable title in fee simple to Lot 8A as shown on record map #2778 and being the same property as described in a certain deed from Lawrence D. Paulet and Dorothy C. Paulet to Victoria R. Fash and recorded on the Weston land records in Vol. 211 pages 875 and 876. Said property is also known as 27 Rogues Ridge Road, Weston Connecticut; and,
CT Page 4827 As to the second parcel.
Victoria Fash has a good and marketable title in fee simple to Lot 9A as shown on record map #2778 and being the same property as described in a certain deed from Lawrence D. Paulet and Dorothy C. Paulet to Victoria R. Fash and recorded on the Weston land records in Vol. 220 at pages 332 and 333.
As to Katherine DeSousa
Katherine DeSousa has a good and marketable title in fee simple to Plot 10 as shown on record map #1272 and being the same property as described in a certain executor’s deed from The Connecticut Bank Trust Company, N.A. to Katherine DeSousa and recorded on the Weston land records in Vol. 130 at page 840.
As to Gary Gubner
Gary J. Gubner has a good and marketable title in fee simple to Lot #7 as shown on record map #600 and being the same property as described in a deed from Employee Transfer Corporation to Gary J. Gubner and Beverly Gubner and recorded on the Weston land records in Vol. 116 at page 852.
AND AS TO Alexander Klokus v. One Hundred Lords Highway et al., docket number CV065002132S in the Fairfield Judicial District at Bridgeport on the counterclaim plaintiff, Gary J. Gubner’s claim of adverse possession in favor of Alexander Klokus, the counter claim defendant, in the above mentioned action.
AND AS TO the remaining counterclaim/cross-claim defendants (100 Lords Highway, LLC and 102 Lords Highway, LLC) in the above mentioned action, the court enters judgment by default on their respective failures to appear above.
In Mr. Gubner’s case the court has previously found the issue against him on his claim of adverse possession to the strip of land as shown on Exhibit I.
Further, taxable costs are awarded to the plaintiffs on the Quiet Title claims and to the defendants on the Adverse Possession claim. The plaintiffs and defendants herein shall prepare a Bill of Costs and file the same with the clerk’s office.
CT Page 4828 X. N.B.
Where used the asterisk (*) indicates that due to the unusual constraints of time the court was under, it was prevented from precisely locating of the references to transcript pages or documentation either in the body of the decision or in the footnotes. I have instead relied on my recollection of the evidence and the copious notes taken by me in lieu of those references.
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