2007 Ct. Sup. 20462
No. CV 06 4012038-SConnecticut Superior Court Judicial District of Waterbury at Waterbury
November 29, 2007
MEMORANDUM OF DECISION
ROBERT G. GILLIGAN, JUDGE.
This is an action for an injunction brought by the plaintiff, Alfred Capodagli, to restrain the defendants, Boyden Estates, LLC and Saul Strulovic from trespassing and conducting other activities on property which the plaintiff claims to have acquired ownership by adverse possession. At the hearing on the temporary injunction, the parties entered into informal agreements in lieu of a decision on the application for the temporary injunction and requested a final hearing on the merits of a permanent injunction.
The plaintiff asserts that he has acquired title, by adverse possession, to portions of Lots 3 and 4 (the “Disputed Property”) in the defendant’s subdivision now known as Society Hill, located on the westerly side of Boyden Street in Waterbury, Connecticut. The plaintiff claims title to the Disputed Property by virtue of his having “used and enjoyed” it for more than fifteen years and that “his use and possession has been open, visible, notorious, adverse, continuous and uninterrupted.”
The plaintiff seeks an injunction against trespass and “other destructive actions” by the defendants, an order that the defendants restore the Disputed Property to its prior state and money damages, including costs.
In their answer, the defendants have denied that the plaintiff is the owner or in possession of the Disputed Property.
BACKGROUND
On or about October 2, 1989, Alfred Capodagli purchased Lot 3 in the residential subdivision known as Highfield Meadow, which property is now commonly known as 16 Cathy Lane, Waterbury, Connecticut (the “Capodagli Lot”). The Capodagli Lot lies directly to the south of, and abuts portions of Lots 3 and 4 in the Society Hill Subdivision. The Disputed CT Page 20463 Property is part of a ten-and-one-half-acre undeveloped parcel of land formerly known as 499 Boyden Street, Waterbury, Connecticut which was approved as the 49 Lot Society Hill Subdivision in May 2004. The ownership of the Society Hill parcel has changed hands a number of times. The record owners of the Society Hill parcel during the period of the plaintiff’s ownership of the Capodagli Lot are the Bank of Stamford Service Corporation, the Federal Deposit Insurance Corporation, William Martin, Boyden Partners, LLC, Saul Strulovic and Boyden Estates, LLC.
The court heard evidence in the matter on April 18 and 24, 2007. Testimony was given by the plaintiff, the defendants, several present or former neighbors on behalf of the plaintiff and a licensed surveyor on behalf of the defendants. The court also admitted into evidence several maps and numerous photographs depicting the Capodagli Lot and the Disputed Property, Three Warranty Deeds and Two Quitclaim Deeds of the properties.
The defendants filed a Motion to View the property. The plaintiff objected to the motion. The court reserved decision on the motion and after reviewing the testimonial and other evidence, the court determined that the evidence was sufficient to render a decision on the issues without a viewing of the property.
STANDARDS
“A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court.” (Internal quotation marks omitted.) Lydall v. Ruschmeyer, 282 Conn. 209, 237, 919 A.2d 421 (2007). “A mandatory injunction . . . is a court order commanding a party to perform an act . . . Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . In sum, [m]andatory injunctions are . . . disfavored as a harsh remedy and are used only with caution and in compelling circumstances.” (Citations omitted; internal quotation marks omitted.)Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004).
“[A]lthough a temporary injunction simply maintains the status quo while the rights of the parties are being determined (citation omitted), a permanent injunction effects a final determination of these rights.”Ulichny v. Bridgeport, 230 Conn. 140, 142, 644 A.2d 347 (1994).
CT Page 20464TITLE BY ADVERSE POSSESSION
The plaintiff claims that he has acquired title to the Disputed Property by adverse possession.
“[T]o establish title 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 [or her] own and without the consent of the owner.” (Internal quotation marks omitted.)Alexson v. Foss, 276 Conn. 599, 614 n. 13, 887 A.2d 872 (2006); General Statutes § 52-575.[1]
The burden of proof is on the party claiming adverse possession Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn.App. 839, 844, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058
(2002). Moreover, the burden of proving acquisition of title to real property by adverse possession is not easily sustained. A finding of “[a]dverse possession is not to be made out by inference, but by clear and positive proof . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if 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.” (Internal quotation marks omitted; citations omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). In the final analysis, whether possession is adverse is a question of fact for the trier. Padula v. Padula, 138 Conn. 102, 110, 82 A.2d 362.
DISCUSSION
The dispute arose in November of 2006, when the plaintiff observed and objected to site preparation work being conducted on the Disputed Property by the defendants’ agents.
The plaintiff has alleged that he is the owner and in possession of the Disputed Property. The defendants have denied that the plaintiff is the owner or in possession of the Disputed Property.
Where an injunction against trespass is sought, if both title and possession are alleged and the answer is a general denial, as in the present case, both title and possession are put in issue. Barca v. CT Page 20465 Mongillo, 133 Conn. 374, 376, 51 A.2d 598. Title is an essential element in a plaintiff’s case, where an injunction is sought to restrain a trespass. McNamara v. Watertown, 100 Conn. 575, 579, 124 A. 244. Therefore, the plaintiff must establish title to the Disputed Property in order to maintain this action.
The elements required to establish title by adverse possession serve to enforce the rule that disfavors acquisition of title by adverse possession by giving the record owner sufficient notice that his title is at risk so he can act to protect his interest. A valid claim of adverse possession requires that the owner be on notice that a hostile claim is being pursued. “Proof of the various elements of an adverse possession claim is required to establish that the owner of the land at issue was on notice that a hostile claim was being asserted against his or her ownership rights, such that the owner had the opportunity to take action to protect those rights.” (Citation omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Ass’n., 93 Conn.App. 759, 781 (2006).
In this case, the defendant’s surveyor, John Stankus, testified that he walked the Society Hill parcel many times in connection with the development of the Society Hill subdivision. He further testified that, as part of his professional responsibilities in preparing surveys, he is required to look for “evidence of occupation” and “lines of possession” and that, during his site work, he observed none. Although the land was mostly wooded, the surveyor also testified that there were other “cleared” or less wooded areas similar to the Disputed Property in some portions of the Society Hill parcel.
“The location and condition of the land must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions.” (Citations omitted.)Lucas v. Crofoot, 95 Conn. 619, 626, 112 A. 165 (1921). The ten-and-one-half-acre Society Hill parcel was an undeveloped, mostly wooded tract of land until the interior roads and infrastructure were constructed in 2005. Among the forty-seven photographs submitted by the plaintiff as evidence are two photographs of the Disputed Property taken in 1999 from the plaintiff’s rear deck. (Plaintiff’s Exhibits 2 and 3.) The photographs clearly show the Disputed Property surrounded by heavily wooded land. The Disputed Parcel is situated in the interior of the parcel approximately 125 feet to 185 feet from Boyden Street (Defendant’s Exhibit O). Given the wooded nature of the tract, the interior location of the Disputed Property made its visibility from the street difficult.
CT Page 20466 The plaintiff called two witnesses who testified that they attended social gatherings at the plaintiff’s home and “always assumed” that the Disputed Property was part of the plaintiff’s property. The plaintiff also called a neighbor as a witness who testified that the plaintiff told him that he was “taking over the disputed property as his own.” The witness, David Romonas, further testified that he was present in 1990 when the plaintiff and another man rolled a telephone pole back into the Disputed Property. Romonas testified that when he remarked to the plaintiff that they were pushing the pole “pretty far back,” the plaintiff replied “squatter’s rights.” Such remarks by the plaintiff to social guests at private gatherings are not of such sufficiently overt character as to satisfy the requirement that the plaintiff openly and publicly indicate that he had assumed control and ownership of the Disputed Property.
EXCLUSIVE POSSESSION AND OUSTER
As stated, the essential elements of an adverse possession sufficient to create title to the land in the claimant are that the owner shall be ousted of his possession and kept out uninterruptedly for a period of fifteen years, by an open, visible and exclusive possession by the claimant without the license or consent of the owner. Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385; Barrs v. Zukowski, supra. The possession necessary to constitute an ouster under § 47-21 is not some fleeting or ephemeral technical invasion of the property . . . Rather, it is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150. “Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise . . .” Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985).
Moreover, the plaintiff must also show that his possession of the Disputed Property was exclusive. Whitney v. Turmel, 180 Conn. 147
(1980). “The use is not exclusive if the adverse user merely shares dominion over the property with other users.” Short Beach Cottage Owners Improvement Assn. v. Stratford, 154 Conn. 194, 199, 224 A.2d 532 (1966). The exclusivity requirement means that the plaintiff must have exercised dominion and control alone over the Disputed Parcel for the required fifteen-year statutory period. Possession is not exclusive if an adverse claimant merely shares dominion with other users. Whitney, supra. There is evidence that others sometimes walked over, played on, built camp fires, rode motor bikes or dumped bulky waste including refrigerators on the Disputed Property and elsewhere on the Society Hill parcel. The plaintiff produced no testimony that these activities were conducted CT Page 20467 with his consent or permission.
The plaintiff submitted several photographs of trees that the plaintiff planted in the rear of his home (Plaintiff’s Exhibits 28 and 33) but conceded on cross examination that they were all planted and remain on his deeded property or its boundaries.
Furthermore, there is evidence in the record that, in May of 2004, a predecessor in title applied for and obtained subdivision approval of the Society Hill Subdivision from the City of Waterbury. (Approval letter on Defendant’s Exhibit O.) Given the plaintiff’s purchase of his deeded property on October 2, 1989, these zoning proceedings took place within the fifteen-year period claimed by the plaintiff. As an abutting property owner, the plaintiff would have received legal notice of the public hearing to be held on the application. The submission of the Society Hill parcel by the defendants’ predecessor in title evidenced an exercise of dominion and control of the parcel, including the Disputed Property, and served notice to the public that the true owner retained and exercised dominion and control of how the Disputed Property was to be used.
DESCRIPTION OF THE DISPUTED PROPERTY
In order to resolve the issue of title to the Disputed Property, it must be capable of being legally described. Here again, the burden is on the plaintiff to locate the boundary line. Barrs v. Zukowski, 148 Conn. 158, 164-65, 169 A.2d 23 (1961).
According to the plaintiff, the easterly and westerly boundaries of the Disputed Property are established by straight line extensions of the easterly and westerly boundaries of the Capodagli Lot to a point located approximately three feet from Boyden Street. In his testimony, he further qualified the description by adding that the westerly boundary had a “westward jog” and northwest corner of the Disputed Property “flared out” into a triangular parcel but was not able to describe it further or provide any dimensions. He further acknowledged that he occupied various portions of the Disputed Property at various times and could not describe the specific areas he continuously occupied with any certainty.
Testimony was provided that, although there were no visible physical extensions of the easterly or westerly boundaries of the Capodagli Lot into the Disputed Property, there were hedges along the easterly and westerly boundaries of the Capodagli Lot which stopped at the southerly property line of the Disputed Property. The plaintiff testified that he CT Page 20468 considered the easterly and westerly boundaries of the Disputed Property to be established by various trees in the vicinity of the claimed boundaries. From the testimony and photographs received in evidence, the court finds that the randomly spaced trees, not growing in a straight line nor planted by the plaintiff, are insufficient to reliably establish the easterly and westerly boundaries of the Disputed Property and the property rights of abutting property owners.
The plaintiff claims that his placing of the telephone pole at the back of the Disputed Property was sufficient to establish its northerly boundary. As to this claim, the court notes that there was testimony that the pole was only twenty feet in length while the length of the northerly boundary of the property claimed by the plaintiff is sixty feet. Furthermore, the pole lay on the ground beneath some trees and the surveyor and one of the plaintiff’s witnesses both testified that neither saw the pole. Finally, the plaintiff acknowledged in cross examination that even if the pole could be seen, there was nothing to prevent a person seeing it to consider it just one of many other articles of waste that was dumped on the property. Given the disparity between the length of the pole and the length of the claimed boundary, the plaintiff in his testimony was unable to describe how or where the northerly and westerly boundaries met so as to enclose the Disputed Property. The failure to locate the intersection of the claimed westerly line and the northerly line of the Disputed Property make it impossible to enclose the area of the property claimed by the plaintiff.
The plaintiff presented no survey to show the claimed boundaries of the Disputed Property. There are no marked or staked boundary lines. The plaintiff built no fence or other physical structure to enclose, to the exclusion of all others. In the instant case, the plaintiff is unable to fix the location of the boundary lines of the Disputed Property at all, much less with any degree of certainty.
The court concludes that the plaintiff has failed to sustain his burden of proof with respect to the establishment of the boundaries of the Disputed Property.
CONCLUSION
“The doctrine of adverse possession is to be taken strictly.” (Internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 499 A.2d 911 (1982). Although the plaintiff apparently used the Disputed Property from time to time as his own, the court finds that he has not sustained his burden of proof. He did not pay taxes on the Disputed Property. His occasional picnics and use of the Disputed Property to CT Page 20469 repair his automobile and on one occasion to repair his lawnmower do not rise to a level necessary to sustain his claim. The plaintiff further failed to enclose or identify with any degree of specificity what portion of the Disputed Property he actually occupied continuously and adversely.
A party claiming title must rely on the strength of his own title and not on the weakness of the title of another. Velsmid v. Nelson, 175 Conn. 221, 229, 397 A.2d 113 (1978). In the light of the facts recited above, including the relative seclusion of the tract of land, the irregularity, nature and infrequency of the hostile acts, the plaintiff’s inability to locate either the proper boundary lines or the exact area of the Disputed Property he claims to have continuously occupied, together with the finding that the plaintiff’s occasional use of the Disputed Property was not sufficiently open, visible and exclusive to constitute an ouster of the defendants, the court finds that the plaintiff has failed to prove this claim of ownership of the Disputed Property, by the applicable standard of clear and positive proof.
The plaintiff’s application for a permanent injunction is denied and judgment, without costs, is entered in favor of the defendants in accordance with this decision.
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