2005 Ct. Sup. 12316
No. CV 03 82283 SConnecticut Superior Court Judicial District of Tolland at Rockville
September 7, 2005
MEMORANDUM OF DECISION
KLACZAK, JUDGE TRIAL REFEREE.
This case involves a dispute between adjoining property owners over boundary lines in one area and a claim of ownership by adverse possession in another area. The parties have identified these two areas as the “Adverse Possession” parcel which lies north of an automotive garage owned by the named plaintiff, and the “trailer” parcel which is located west of the plaintiff’s garage. The parties stipulated that the plaintiffs claim ownership of the “trailer parcel” by deed and by adverse possession of the area north of the garage.
The defendants seek, by Counterclaim, to quiet title and to establish boundary lines between the parties.
The Adverse Possession Claim
The elements of adverse possession are well established by statute and case law. The title owner of property must 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. Connecticut General Statutes § 52-575; Stevens v. Smoker, 84 Conn. 569, 574 (1911). The burden of establishing adverse possession is upon the person asserting it by clear and convincing evidence. This is a substantial burden and obviously intended to be such before a record owner is divested of his property. The Court is obliged to consider the nature and character of the property in determining if the owner had actual or constructive notice of the adverse use. Exley v. Gallivan, 96 Conn. 676, 679 (1921); Loeb v. Al-Mor Corp., 42 Conn.Sup. 279, 290 (1991) (4 Conn. L. Rptr. 788).
The plaintiff called several fact witnesses who testified variously about the claimed use of this property — which is approximately one-third of an acre in size and lies between the rear of the garage and Route 6. It is a wooded piece, generally undeveloped, although in recent years the CT Page 12317 named plaintiff has done some cosmetic clearing.
At least one witness was not on site until recently. Chris Weeland testified he did some cleaning of the site but that was in 1993.
Other witnesses testified that in the 1980s there were some car parts strewn in the disputed area.
Because of the proximity to the garage it is likely that some scrap parts were dumped on the property, but it was not shown to be particularly intensive. Given the nature of the area, which was, until recently, overgrown and uncleared, those pieces were not likely to be seen from Route 6, which the defendants traveled regularly.
The only use noted by Mr. Hayes was one time when several loads of wood were piled up there for a relatively short time. Other than that the Hayes first became aware of any encroachment when the plaintiff placed his three storage containers on the west side of the garage on property the Hayes claim to own. Mr. Hayes, Jr., was told by the zoning enforcement officer of that development and he then confronted the plaintiffs. (This was, however, on the “trailer parcel” and not the “adverse possession” parcel).
The plaintiffs’ fact witnesses, neither individually nor in the aggregate have established by clear and convincing evidence the elements of adverse possession of that disputed parcel. Nor does Donald Aspinall’s testimony that many years ago, cows traveled across that parcel to get to a parcel which now lies south of Route 6 but prior to Route 6 being built establish an uninterrupted use for longer than fifteen years.
Therefore, as to the second count of the complaint, judgment shall enter for the defendants. The boundaries of this so-called disputed parcel are not in dispute. It is depicted as 13,466 sq. ft. on plaintiffs’ exhibit G, (survey prepared by James Poggioli Land Surveying).
The plaintiff explicitly withdrew the fourth and fifth counts at the time of trial, which claimed title to this piece by prescriptive easement.
The Claim of title to the “Trailer” parcel.
The plaintiffs, in the first count, seek to quiet title to this piece, alleging that they have deeds to that parcel which now house the three storage trailers. CT Page 12318
The defendants claim title to the same parcel through the deeds in their claim of title.
The parties seek to have the Court establish the boundaries and to quiet title in their favor.
The plaintiffs called as their expert, James Poggioli, an expert in land surveying.
The defendant’s expert witness was Kenneth Pudeler, a civil engineer and a qualified land surveyor. Their testimony was conflicting as to the western boundary of the trailer parcel. It is left to the Court to assess their testimony, the validity of their reasoning, and to ultimately determine the dispute between the parties.
The deeds in the parties’ chains of title do not, in themselves, establish the boundary lines. Each expert drew his own conclusion from the various deeds in the title and each gave his opinion based not only on the language of the deeds, but also used field observations. The Court also viewed the property in question.
Based on a careful review of the testimony, documentary evidence and its own viewing, the Court concludes that Kenneth Pudeler’s reasoning was more persuasive and better supported by underlying findings.
For example, Mr. Poggioli, in order to have his conclusion work, assumes an 1846 deed to the property measures from the center line of Johnson Road, thence it meets with a stone wall which would go to the center of the road. (The location of Johnson Road — then known as Hop River Turnpike — cannot be accurately known in 1846). His interpretation of the location of the boundary wall is too vague to be acceptable.
He testified that a 1930s DOT map does not depict a wall where the defendant claims the boundary, but credible evidence was that since this area was not part of the right-of-way that the DOT was mapping for the present day Route 6, their map would probably not accurately depict buildings, walls, etc. which were not part of its taking.
Mr. Pudeler credibly explained that his findings as to the location of the boundary were consistent with his review of the 1846 map which is the earliest in the chain of title. The Pudeler boundary location is also supported by the location of remnants of a stone wall which appear to turn or angle as described in the 1846 deed, whereas Mr. Poggioli’s placement of the boundary does not show evidence of a stone wall at that location. CT Page 12319
Based on the finding that Mr. Pudeler’s conclusions make more sense and are better supported by the evidence, the Court establishes the western boundary of the plaintiffs’ property as shown on the Pudeler survey and as claimed by the defendants.
In their Counterclaim, the defendants seek damages for the unlawful storage of the trailers on their property of $1,000 per year. Commencing December 1, 2001, Mr. Hayes, Sr., testified as to how he calculated that figure. It was not refuted and appears reasonable to the Court.
The plaintiffs shall pay damages to the defendants of $1,000 per year from December 1, 2001.
Klaczak, J.T.R. CT Page 12320