Opinion
MMXCV146011973
08-29-2016
Dish Mill Hill Associates, LLC v. Timothy J. D'Amato et al
August 30, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Julia L. Aurigemma, J.
The plaintiff, Dish Mill Hill Associates, LLC, started this action against the defendants, Timothy J. D'Amato, Joan D'Amato, Erwin Waibel and Ramona Waibel in 2014. The operative complaint, the First Amended Complaint, dated August 8, 2014 seeks " a judgment determining the rights of the parties in and to South Dish Mill Road, the rights of access of the Plaintiff over and across South Dish Mill Road and settling the parties' respective property interests in and to South Dish Mill Road and access over it." The operative answer of the defendants Erwin and Ramona Waibel, dated October 21, 2014, admits that Erwin and Ramona Waibel " are the owners of property adjacent to the property of the Plaintiff which property also has frontage on South Dish Mill Road in the Town of Haddam located to the west of South Dish Mill Road and to the south of the property of the Plaintiff herein, " and leaves the plaintiffs to their proof on the other allegations of the complaint. The operative counterclaim by the plaintiffs/defendants, Erwin and Ramona Waibel, appears to be contained in two parts. The Original Counterclaim was filed on October 21, 2014. It contained two parts. The first was entitled " Counterclaim (Statement of Claim), " and the second entitled " Counterclaim (Damages)." By Motion for Permission to Amend Counterclaim, the Waibels sought to amend the Statement of Claim portion of their counterclaim, but did not include the Damages portion of the original counterclaim in the amended counterclaim. However, based on the large amount of evidence submitted regarding damages it appears that the Waibels have not abandoned the damages portion of their counterclaim, which alleges:
The plaintiff withdrew its action against Timothy J. D'Amato and Joan A. D'Amato prior to the conclusion of the trial, so the court will not address the pleadings of the D'Amatos.
1. Commencing sometime after November 22, 2009, the Plaintiff Dish Mill Associates, LLC entered upon the property of the Defendants Erwin Waibel and Ramona Waibel and excavated, graded and relocated an old woods road which formed the boundary line between the land of the Plaintiff's and land of the Defendants Erwin Waibel and Ramona Waibel.
2. Commencing sometime after November 22, 2009, the Plaintiff Dish Mill Associates, LLC excavated land adjacent to the Defendants Erwin Waibel and Ramona Waibel in connection with its excavation, grading and relocation of an old woods road which formed the boundary line between the land of the Plaintiff's and land of the Defendants Erwin Waibel and Ramona Waibel.
The Damages portion of the Counterclaim further alleges that the excavation by the plaintiff has rendered the Old Woods Road impassible and has damaged the Waibels.
The State of Claim portion of the Counterclaim alleges:
1. This is a Statement of Claim made pursuant to Connecticut General Statutes § 47-31.
2. The Defendants, Erwin Waibel and Ramona Waibel are the absolute owners of the entire property described in Defendants Exhibit A attached hereto and made a part hereof, which includes land which may be claimed by the Plaintiff in its First Amended Complaint dated August 8, 2014.
In the counterclaim the Waibels seek, inter alia, a judgment determining title and rights of the parties in the property described and damages.
After a trial, which occurred on October 22, 2015, November 4, 2015, December 9-10, 2015 and February 2-3, 2016, the court finds the following facts. The Waibels own approximately 75 acres of land in Haddam, Connecticut, which property is described in Attachment A to the defendants' June 6, 2016 Memorandum and also Attachment A to this decision, minus the final paragraph (the " Waibel Property"). The Waibel Property is abutted by the plaintiff's property to the north and the D'Amato property to the east, separated in part by a discontinued or abandoned portion of the former Dish Mill Hill Road.
Erwin R. Waibel was born on the Waibel homestead near the Waibel Property on January 1, 1943 and lived there until he went into the Army in July 1966. The Waibels claim title to the Waibel Property by virtue of a deed to them from Erwin R. Waibel and Margaret Waibel dated 2007. The title to the defendants originated with a deed to Maria Waibel, Erwin R. Waibel's mother, from Pauline Planeta dated May 11, 1942 containing a total of 90 acres. Thereafter, Maria Waibel had her property surveyed by Paul Kaye, registered land surveyor, by map dated July 7, 1975. The boundary line of what was to become the Waibel Property is specified by metes, bounds, pins, drill holes in boulders all found or set by Mr. Kaye. The map was recorded on the Haddam Land Records. Thereafter, by deed dated November 27, 1997, Maria Waibel conveyed to her son, Erwin R. Waibel and daughter, Margaret, by Warranty Deed containing a specific reference to the 1975 Kaye survey what was described as " all Connecticut land owned by Maria Waibel located on the northerly side of Little City Road and westerly side of Dish Mill Road and more particularly bounded and described as the 164.4 acres on a survey map titled 'Plane of Land of Maria and Erwin Waibel.'"
The Waibels also claim title to a portion of the discontinued or abandoned Dish Mill Hill Road lying east of the Waibel Property a distance of 52 feet from the " end of pavement" as shown on the July 2007 Gates Map, Exhibit 15.
There was considerable evidence concerning a pathway referred to as the Old Woods Road. Mr. Waibel testified that he and his family used it to access the top of their property and he remembers using it when he was five years old. The Waibels claim that a portion of the Old Woods Road is on the Waibel Property. The plaintiff points out that even Mr. Gates, the Waibel's surveyor, was unable to locate the Old Woods Road during his survey and further argues that neither the final deed to the Waibel Property nor any of the previous deeds reference the Old Wood Road being located on the Waibel Property or forming a boundary of the Waibel Property.
The importance of the Old Woods Road relates to the Waibels' claim that the plaintiff's construction of a new road on the Dish Mill Property caused damage to the Waibel Property. The Waibels argue that as a result of the excavation by the plaintiff in connection with the new road, a significant amount of material was removed, which compromised the Waibel Property, the Old Woods Road and its lateral supports and created a 10 foot cliff that severed the Old Woods Road and caused severe damage to its lateral supports.
The Waibels hired Thomas Metcalfe, a civil engineer, to perform an assessment of the plaintiff's excavation in the fall of 2010 to determine the effect on the Waibel Property and the Old Woods Road. Mr. Metcalfe wrote a report dated November 24, 2010 in which he recommended that certain measures be taken to stabilize the property. He proposed a short term stabilization plan. Some work was done to fill the excavated areas. When Mr. Metcalfe returned to the area of the alleged disturbance in 2015 the area that he had stated would be subject to erosion due to the plaintiff's excavation work showed minimal erosion. Mr. Metcalfe provided the Waibels with a cost estimate dated February 1, 2016. That estimate provides, in part:
You requested that I provide you with a cost estimate for site work associated with the restoration and stabilization of that portion of the 'old woods road' that provides access to your property off of South Dish Mill Road which was disturbed or eliminated by construction of a new gravel driveway on or adjacent to your property . . .
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3. Construction of the existing gravel driveway has impacted approximately 150 ft. Of the woods road from 'A' to 'B' as shown on the reduced plan [" Topography of Old Woods Road & New Drive Area Prepared for Erwin R. & Ramona J. Waibel Dish Mill Road Haddam, Connecticut" 1" =20' Dec. 22, 2010 by Richard W. Gates, L.S.]. Since portions of the woods road were destroyed and not depicted on the [sic] on the Gates plan, I assumed the woods road had a straight alignment from the depicted woods road just south of 'A' extending to 'B.'
A portion of the restored area would/could utilize some of the existing gravel driveway travelway as they are coincident in location for a portion of the old woods road alignment and would be the most cost efficient. I estimate the cost to restor the woods road from 'A' to 'B' to be $14,034.00
4. Further to the north, construction of the new gravel driveway has resulted in the removal of material (soil) that provided lateral support to the woods road shown on the Gates survey map. This portion of the woods road which is approximately 330 ft. in length and is noted from 'B' to 'C' on the reduced plan.
To suitably stabilize this area would require the placement and stabilization of fill material alone the existing embankment cut. I estimate the cost of work and materials for this to be $49,231.00.
Mr. Metealfe further opined that in order to restore the Old Woods Road an updated topographic survey and an as-built survey would be required at a cost of $18,000. Thus, the total cost to restore the Old Woods Road would be $81,265.00 according to the Waibels.
South Dish Mill Road is one of three portions of the former Dish Mill Hill Road which ran from Little City Road north to Connecticut Route 81. South Dish Mill Road is the first portion which goes from Little City Road to the end of pavement, a point which is clearly designated on various maps including the January 2007 Gates Map, and the Ponset Woods Subdivision Map, Exhibits 14 and N, respectively. This first portion measures approximately .26 miles and is listed in the Town of Haddam " Miles of Locally Maintained Roads."
This case involves the second portion of the former Dish Mill Hill Road from the end of pavement running north to what is now Route 9. On June 17, 1944 at a Special Town Meeting, it was voted to discontinue the Dish Mill Hill Road from the Masnica property to the Little City Road. No appeal of the 1944 discontinuance was ever taken. Liz Glidden, the Haddam Town Planner, testified at trial that Haddam considers the second portion of the former Dish Mill Hill to have been abandoned by virtue of the aforementioned vote at the special meeting in 1944. This portion of the former Dish Mill Hill Road is not passable and there was no evidence presented that it had been used as a road from 1944 to the present.
Prior to discontinuance the plaintiff's predecessor in title (Masnica) had access to his property from the north over the northerly portion of the former Dish Mill Hill Road, also known and referenced on maps as Dish Mill Road. The plaintiff's northern access continued until 1962 when the State of Connecticut took the northerly portion of Dish Mill Road for Connecticut Route 9.
Mr. Waibel testified that from the time he was in fourth to ninth grades (approximately 1952-1957, as Mr. Waibel was born in 1943) he cut through the former Dish Mill Hill Road only when the weather was good from the end of the public portion north of the Masnica property to his family home on Little City Road.
The Town of Haddam Assessor's office acquired an aerial map of the properties at issue in this case in 1960. (Exhibit QQ.) That map shows the third portion of Dish Mill Hill Road north of Route 9 has a clearly defined travel way, but the second portion from the end of pavement to what is now Route 9 is heavily treed with no evidence of a roadway.
Attorney David Royston, who testified as an expert witness for the defendants, stated that he could not discern any traveled way in the second part of Dish Mill Hill Road and further stated that that section of Dish Mill Hill Road was heavily treed, overgrown and not walkable. This was consistent with the testimony of Douglass Larson, a member of the plaintiff, that at the time the plaintiff purchased its property the second portion of Dish Mill Hill Road was not useable, not maintained, unpaved and impassable, which required the plaintiff to construct a new road.
The third portion of Dish Mill Hill Road is north of Route 9. The 1970 Town of Haddam " Miles of Locally Maintained Road" lists only the first portion of Dish Mill Hill Road and the third portion, but not the portion which is at issue in this case.
The plaintiff executed a Purchase and Sale Agreement for 36.8 acres in Haddam, Connecticut on May 20, 2008 (the " Dish Mill Property"). The Purchase and Sale Agreement included a 45 day due diligence period to " investigate access and buildability" prior to purchase. When the plaintiff purchased the Dish Mill Property it had not investigated whether access existed along Dish Mill Road, although it was aware that the abandoned roadway was not passable or useable as a road and that it would need to build a new road to access its property.
In 2011 Dish Mill Hill Associates first began to investigate access to the Dish Mill Property. It inquired of the Town of Haddam whether or not South Dish Mill extended past the point of pavement and whether or not it was a town road. In response to the plaintiff's inquiry, the Town of Haddam hired a consulting engineer, Jeffrey Sanborn of Nathan Jacobson and Associates, to investigate. On November 1, 2011 Mr. Sanborn issued his report determining that a portion of the former Dish Mill Hill Road was discontinued with the discontinued portion running from beyond the end of pavement at the northeast end of South Dish Mill Road. The report further states that there was no roadway discernible and nothing that would indicate that the public had used the road for a very long time. The Town of Haddam considers the portion of Dish Mill Road from the end of pavement north to be discontinued or, in the alternative, abandoned, does not list that portion as a town road and does not maintain it.
Discontinuance of the Roadway
A party seeking an easement by necessity " has the burden to prove the existence of such easement, and that the easement is reasonably necessary for the enjoyment of the land, by clear and convincing evidence. The burden of proving that an alternative mode of access is not available is also on the person claiming the easement by necessity." Christensen v. Reed, 105 Conn.App. 578, 589, 941 A.2d 333 (2008).
Discontinuance of public road is conducted under Connecticut General Statutes § 13a-49 which states:
Selectmen of a town may discontinue, subject to approval by a majority vote at any regular or special town meeting. The discontinuance must be in writing by the selectmen and the process must be a formal one.
The statute requires a written discontinuance, but does not specify the form of writing required. Writings that have been held to satisfy the writing requirement include minutes of a meeting of the board of selectmen, Chaput v. Clarke, 26 Conn.App. 785, 603 A.2d 1195 (1992); a certificate of the selectmen, City of New London v. New York, N.H.N.R. Co., 85 Conn. 595, 84 A. 114 (1912); and a written report of the selectmen to the town reporting that they had discontinued a road pursuant to a town vote. Clark v. Town of Cornwall, 93 Conn. 374, 106 A. 347 (1919).
The plaintiff introduced a document (Exhibit 20) which appears to be both a notice of a Town Meeting signed by the selectmen of the Town of Haddam and the minutes of such meeting. The notice portion is typed and states, in pertinent part:
Notice is hereby given to the legal voters of the Town of Haddam that a Special Town Meeting will be held at the Town Hall, Haddam, Conn. Saturday, June 17, 1944, at 7:30 P.M. for the following purposes,
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To take action with regard to abandonment or discontinuation of the Dish Mill Hill Road from the Masnica property to the Little City Road, the distance being approximately one-quarter mile.
The same document contains hand writing, including the following:
Voted to discontinue the Dish Mill Hill road from the Masnica property to the Little City Road . . .
The foregoing appears to be a writing signed by the selectmen and indicating a vote to discontinue what has been referred to herein as the second portion of Dish Mill Hill Road. The parties agree that a method of appealing action by a Town meeting existed at the time of the discontinuance, and no appeal was ever taken. Moreover, in absence of proof to the contrary, a town and its officials are presumed to have acted in accordance with the law. City of New London v. New York, N.H.N.R. Co., 85 Conn. 595, 601, 84 A. 114 (1912).
Based on the foregoing, the evidence that the Town considers the second portion of Dish Mill Hill Road to have been discontinued since 1944, and the lack of any evidence that that portion of the road was used as a roadway since 1944, the court finds that it was discontinued in 1944.
The defendants also argue in the alternative that the second portion of Dish Mill Hill Road was abandoned in 1944. A public highway can be lost by abandonment. Beardslee v. French, 7 Conn. 125, 128 (1828); City of Hartford v. New York and New England Railroad Co., 59 Conn. 250, 259, 22 A. 37 (1890); Newkirk v. Sherwood, 89 Conn. 598, 604, 94 A. 982 (1915). Abandonment of a highway requires nonuser by the public, together with an intent to abandon the road as a public roadway. Newkirk v. Sherwood, supra .
Abandonment requires a voluntary and intentional renunciation of the rights of the unorganized public to use the highway, but this intent may be inferred as a fact from the surrounding circumstances. Pizzuto v. Town of Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978); City of New London v. Pequot Point Beach Co., 112 Conn. 340, 347, 152 A. 136 (1930); Newkirk v. Sherwood, 89 Conn. 598, 604, 94 A. 982 (1915). In Newkirk the court found that " there had been no use of any part of the locus for a highway within the memory of witnesses covering a period of over 60 years, " and held that that was circumstantial evidence of an intent to abandon.
Here, evidence of abandonment includes the 1944 vote of discontinuance, lack of maintenance by the town, the absence of the portion of Dish Mill Hill Road at issue from the town's inventory of highways, the nonexistence of any apparent roadway and the nonuser of the road by the public.
The plaintiff argues that the second portion of Dish Mill Hill Road is mentioned on assessor's maps and in deeds. However, the plaintiff's expert, Attorney Harvey, admitted that the reference to a roadway in a boundary call could be a monument similar to a boulder, tree, or fence.
The plaintiff argues in the alternative that even if the second portion of Dish Mill Hill Road was discontinued or abandoned, it has a statutory easement over that roadway under Connecticut General Statutes § 13a-55, which provides:
Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.
That statute was not effective until 1959 and it does not apply retroactively to owners of property bordering a highway that was discontinued prior to the statute's effective date. Mackie v. Hull, 69 Conn.App. 538, 795 A.2d 1280 (2002); Rudewicz v. Gagne, 22 Conn.App. 285, 582 A.2d 463 (1990); Luf v. Town of Southbury, 188 Conn. 336, 449 A.2d 1001 (1982). Since the second portion of Dish Mill Hill Road was discontinued by the Town in 1944, § 13a-55 gives the plaintiff neither the public easement of travel nor the private easement of access over that roadway. However, the Waibels have a right of way over the westerly half of the second portion of Dish Mill Hill Road under § 13a-55 because their predecessor in title, Maria Waibel, acquired the property in 1942 prior to the discontinuance of the second portion of Dish Mill Hill Road and her ownership continued to the date of conveyance to her children in 1997.
Based on the foregoing judgment enters in favor of the defendants Erwin R. and Ramona J. Waibel on the plaintiff's amended complaint claiming title to and/or access over the second portion of Dish Mill Hill Road.
Ownership of the Old Woods Road
The Waibels argue that their property description should include the " outer edge of the old Woods Road." Plaintiff's Memorandum of June 6, 2016, p. 3. " In determining a boundary line in a deed, the law is clear, there is no room for construction. The inquiry is not the intent of the parties but the intent which is expressed in the deed. Lake Garda Improvement Assn. v. Battistoni, 160, but the intent which is expressed in the deed. Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 (1968); Faiola v. Faiola, 156 Conn. 12, 17, 238 A.2d 405 (1966); Katsoff v. Lucertini, 141 Conn. 74, 77, 103 A.2d 812 (1954).
The plaintiff correctly argues that there is no ambiguity in the description of the Waibels' property. The Waibels' property title originated with a deed to Erwin Waibel's mother, Maria Waibel, from Pauline Planeta dated May 11, 1942 describing three parcels of property without metes and bounds of any kinds containing a total of 164.4 acres. Thereafter, Maria Waibel had her property surveyed by Paul Kaye, registered land surveyor, by a map dated July 7, 1975. The, boundary line of the Waibel's property is specified by metes bounds, pins, drill holes in boulders all found or set by Mr. Kaye. There is a notation on the northeastern boundary on the map of " Probable Remains of Old Woods Road" with an arrow which appears to point to the boundary line. This map was recorded in the Haddam Land Records.
Thereafter by her deed dated November 27, 1997, Maria Waibel conveyed to her son, Erwin and daughter, Margaret, by Warranty Deed containing a specific reference to the 1975 Kaye survey " all Connecticut land owned by Maria Waibel located on the northerly side of Little City Road and westerly side of Dish Mill Road and more particularly bounded and describes as the 164.4 acres on the Kaye 1975 survey map. The deed contains no reference to the Old Woods Road as a boundary line. That deed was recorded in the Haddam Land Records.
Erwin Waibel commissioned another survey map prepared by Richard Gates dated January 2, 2007. This map recorded the same boundary line of the property as the 1975 Kay Map, but contained no mention of an Old Woods Road. Thereafter Erwin Waibel and Margaret Waibel Scott divided the parcel originally received from them by their mother and conveyed the southern portion to the 2007 Gates map. The deed includes a specific metes and bounds description taken from the Gates 2007 map, which contains no reference to an Old Woods Road.
The Waibels hired Richard Gates to do another survey in July 2007. In that survey Mr. Gates placed monuments at the points shown on the 1975 Kaye map. The map does reference an Old Woods Road, but is identical to the description in the Warranty Deed to Erwin and Ramona Waibel. This second Gates survey was recorded on the land records of the Town of Haddam. Thus, while several surveys make a reference to an old woods road, the record title to the Waibel's property never mentions the Old Woods Road as a boundary. Based on the foregoing, the court enters judgment on the counterclaim " Statement of Claim" vesting title described in Attachment A to the June 6, 2016 memorandum of the defendants Waibel, except the last paragraph of that description, to Erwin R. and Ramona J. Waibel free and clear of any claims by Dish Mill Hill Associates, LLC. The amended version of Attachment A is appended to this decision as Attachment A.
Damages
The second count of the counterclaim alleges damages to the Waibels' property by virtue of plaintiff's excavation of the new road on its property. Those excavations were completed as of December 2009 and the Waibels' mapping of the excavation was dated December 22, 2010. The parties agree as to the timing of the excavation. But the plaintiff argues that the defendants' claim for damages is barred by Connecticut General Statutes § § 52-577 and 52-584.
Connecticut General Statutes § 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Connecticut General Statutes § 52-584 provides:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
The Waibels' counterclaim was filed on October 21, 2014. Therefore, the claims alleged therein are barred by both of the foregoing statutes of limitations unless those limitation periods are tolled. The Waibels argue that the statutes of limitations are tolled by the continuing course of conduct doctrine. The Connecticut Supreme Court has stated:
We previously have recognized, however, that the repose section of the statute of limitations found in § 52-584 " may be tolled under the . . . continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." (Internal quotation marks omitted.) Id. " In its modern formulation, we have held that in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . . The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied." (Citations omitted; emphasis added; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 275-76, 640 A.2d 74 (1994).Neuhaus v. Decholnoky, 280 Conn. 190, 201-02, 905 A.2d 1135 (2006).
The defendants rely on Blanchette v. Barrett, 229 Conn. 256, 640 A.2d 74 (1994). That case is inapposite because the complaint alleged medical malpractice and the court found that there was a special relationship between the doctor and patient as well as a continuing course of treatment. They also rely on Giulietti v. Giulietti, 65 Conn.App. 813, 784 A.2d 905 (2001). In that case the court considered a legal malpractice claim in an ongoing representation by the plaintiff's son and found both a special relationship between the parties and later wrongful conduct relating back to the prior wrongful acts at issue.
The defendants also cite Rickel v. Komaromi, 144 Conn.App. 775, 73 A.3d 851 (2013), wherein the court described the facts as follows:
The plaintiff resides at 13 Edgehill Terrace in Seymour. The defendants reside at 10 Sunset Terrace in Seymour, which is adjacent to the plaintiff's property. On or about July 1, 1997, the defendants planted phyllostachys aureosulcata, a type of invasive running bamboo, along their corner property line, but they did not put up any barrier to contain it. The bamboo encroached upon the plaintiff's property. In 2005, during the installation of a patio at the corner of the plaintiff's property, a landscaper used a backhoe and dump truck in order to eradicate the bamboo from the area. The landscaper also installed steel sheathing along this corner property line in order to protect the patio. Despite the steel sheathing, the bamboo had reentered the area by July 2010 .Rickel v. Komaromi, 144 Conn.App. at 777. Emphasis added.
In the present case there was a single excavation which occurred in 2009. Unlike the defendant in Rickel, the plaintiff here did not install bamboo or any other substance which continued to invade the defendants' property for years after it was planted. There is no special relationship between the plaintiff and the defendants. There is no tolling of the applicable statutes of limitations and, therefore, the Waibels' damage claims are barred. For the foregoing reasons judgment enters on the counterclaim " Damages" in favor of the plaintiff.
ATTACHMENT A
All that certain piece or parcel of land, together with all improvements thereon, situated on the northerly side of Little City Road and the westerly side of South Dish Mill Road, in the Town of Haddam, County of Middlesex and State of Connecticut and being shown on the following maps. 1. " Parcel B 74.80 Acres 3, 258, 266 Sq. Ft. Land of Erwin R. Waibel and Raniona J. Waibel" on a map entitled " Dish Mill Road Parcel Plan of Land of Erwin R. Waibel & Ramona J. Waibel Little City Road & Dish Mill Road Village of Higganum, Town of Haddam, County of Middlesex, State of Connecticut Scale 1" = 100' Date July 12, 2007" which map was prepared by Richard W. Gates Land Surveyor 81 Main Street, Centerbrook, CT, on file in the Haddam Town Clerk's office as Map No. 3089. A copy of said map is Exhibit 15 in evidence in the matter captioned Dish Mill Associates v. D'Amato et al., MMX-CV-14-6011973-S (referred to herein as " the 7/12/07 Gates Map"). 2. " Plan of Land of Maria and Erwin Waibel Little City Road Village of Higganum, Town of Haddam County of Middlesex, Stateof Connecticut Scale: 1" = 200' July 7, 1975 Paul Kaye Company--Haddam Conn., " on file in the Haddam Town Clerk's office as Map No. 980. A copy of map is Exhibit 11 in evidence in the matter captioned Dish Mill Associates v. D'Amato et al., MMX-CV-14-6011973-S (referred to herein as " the 1975 Kaye Map"). Reference is hereby made to said maps for a more particular description and location of the premises to which the defendants Erwin R. Waibel and Rainona J. Waibel claim title by deed, which land is bounded and described as follows. Beginning at a point on the westerly side of South Dish Mill Road as shown on said 7/12/07 Gates map (Exhibit 15, referred to on said Gates map and herein as " Dish Mill Road"), which point is an iron rod at the northeasterly corner of land N/F William & Joyce Ann Finlayson; proceed thence N 87° 12' 03" W along said Finlayson land, as shown on said map, 581.10 feet to a point; proceed thence S 06° 15' 42" W along said Finlayson land, as shown on said map, 200.00 feet to a point; proceed thence S 06° 15' 37" W along land N/F Gary S. & Angela J. Ciempa, as shown on said map, 200.00 feet to a point; proceed thence S 06° 15' 44" W along land N/F Anna Retallack, as shown on said map, 224.99 feet to a point; proceed thence S 06° 15' 37" W along land N/F John C. & Patricia M. Stathani, as shown on said map, 200.00 feet to a point; proceed thence N 87° 54' 13" E along said Statham land, as shown on said map, 472.90 feet to a point on Dish Mill Road; proceed thence along a curve of Dish Mill Road, having a radius of 870.00 feet, as shown on said map, 60.63 feet to a point; proceed thence S 06° 15' 40" W along Dish Mill Road, as shown on said map, 107.47 feet to a point; proceed thence along a curve of Dish Mill Road, having a radius of 875.00 feet, as shown on said map, 267.70 feet to a point; proceed thence along a curve of Dish Mill Road, having a radius of 952.00 feet as shown on said map, 166.30 feet to an iron pin; proceed thence S 17° 04' 35" W along Dish Mill Road, as shown on said map, 70.50 feet to a drill hole; proceed thence S 17° 06' 40" W along Dish Mill Road, as shown on said map, 19.36 feet to a point on the northerly side of Little City Road; proceed thence along a curve of Little City Road, having a radius of 865.00 feet, as shown on said map, 388.24 feet to a concrete bound set at the southeasterly corner of " Parcel C Existing Roadway"; proceed thence along said Parcel C, as shown on said map, the following courses and distances: N 55° 13' 08" E, a distance of 70.77 feet to a concrete bound set; N 44° 53' 20" E, a distance of 109.89 feet to a concrete bound set; N 04° 08'48" E, a distance of 141.51 feet to a concrete bound set; N 35° 38' 14" W, a distance of 158.18 feet to a concrete bound set; N 79° 57' 34" W, a distance of 127.26 feet to a concrete bound set; S 58° 33' 45" W, a distance of 114.58 feet to a concrete bound set; S 42° 24' 36" W, a distance of 92.56 feet to a point marked by an iron pin set in rock; S 70° 54' 28" W, a distance of 250.67 feet to a concrete bound set; N 89° 02' 09" W, a distance of 158.45 feet to a concrete bound set; S 66° 33' 49" W, a distance of 172.46 feet to a concrete bound set; S 86° 16' 55" W, a distance of 433.87 feet to a point marked by a concrete bound set in the division line between Parcel B and Parcel A; proceed thence N 05° 32' 03" W along Parcel A, as shown on said map, 1076.17 feet to a concrete bound; proceed thence N 19° 09' 58" E along Parcel A, as shown on said map, 952.04 feet to a point marked by an iron pin set in boulder at land incorrectly designated as " N/F Audrey J. Roberts" on said 7/12/07 Gates map. Said land is shown and designated as " Owners Uncertain" on the 1975 Kaye map (which map shows the same iron pin set in boulder at above referenced corner); proceed thence N 84° 45' 36" E as shown on said 7/12/07 Gates map, 134.54 feet to a concrete bound set at iron rod located; proceed thence S 67° 49' 51" E, as shown on said Gates map, 197.39 feet to concrete bound set; proceed thence S 85° 45' 50" E, as shown on said Gates map, 245.50 feet to a concrete bound set; proceed thence N 48° 56' 40" E, as shown on said Gates map, 292.00 feet to a concrete bound set at iron rod located; proceed thence N 78° 24' 10" E, as shown on said Gates map and also shown on said 1975 Kaye map as " Owners Uncertain, " 268.50 feet to a concrete bound set at an iron rod located, being the same point marked by an iron pipe on the 1975 Kaye map. Said last described line is noted as " probable remains of old wood rd" on said 1975 Kaye map. Proceed thence S 75° 36' 20" E, along land of Owners Uncertain on said 1975 Kaye map (Exhibit 11) and on said 7/12/07 Gates map (Exhibit 15), 176.00 feet to a concrete bound set; proceed thence N 87° 14' 10" E, along land of Owners Uncertain on said 1975 Kaye map and on said 7/12/07 Gates map, 125.30 feet to a concrete bound set; proceed thence S 46° 55' 20" E, along land of Owners Uncertain on said 1975 Kaye map and on said 7/12/07 Gates map, 86.00 feet to a concrete bound set; proceed thence N 34° 9' 40" E, along land of Owners Uncertain on said 1975 Kaye map and on said 7/12/07 Gates map, 302.00 feet to a concrete bound set at iron rod located; proceed thence S 89° 16' 50" E, along land of Owners Uncertain on said 1975 Kaye map and on said 7/12/07 Gates map, 74.00 feet to an iron pin set in rock at iron rod located; proceed thence S 22° 05' 20" E, along land of Owners Uncertain on said 1975 Kaye map and on said 7/12/07 Gates map, 144.00 feet to an iron pin set in rock; proceed thence S 01° 20' 20" E, along land of Owners Uncertain on said 1975 Kaye map and on said 7/12/07 Gates map, 408.43 feet to a concrete bound set; proceed thence S 20° 40' 20" E, along land of Owners Uncertain as shown on said 1975 Kaye map and on said 7/12/07 Gates map, 179.09 feet to a concrete bound set; proceed thence S 27° 53' 20" E, along land of Owners Uncertain on said 1975 Kaye map, 57.12 feet to a point marked on said 1975 Kaye map by an iron pipe; (also shown on said 7/12/07 Gates map as a distance of 57.47 feet marked by a concrete bound set at the same point marked by the iron pipe on the 1975 Kaye map); proceed thence S 09° 36' 40" W, bounded in part the westerly half of the discontinued or abandoned portion of South Dish Mill Road (designated as Dish Mill Road on the above referenced maps) and by the " Paved Portion of Dish Mill Road as of the Date of this Survey, " as shown on said 7/12/07 Gates map, 193.38 feet to a point; proceed thence S 25° 28' 17" W, along Dish Mill Road, as shown on said 7/12/07 Gates map, 39.82 feet to the point and place of beginning. Erwin R. Waibel and Ramona J. Waibel acquired the property described in Attachment A above from Erwin R. Waibel and Margaret Waibel Scott by Deed dated April 10, 2007 and recorded in Haddam Land Records, Volume 311, Page 296. (Exhibit A.) Together with all the right, title and interest to the westerly half of Dish Mill Road abutting the land above described for a distance of 52 feet running northerly from the northerly " End of Paved Portion of Dish Mill Road as of the Date of this Survey" as shown on said 7/12/07 Gates map to a point at the concrete bound set at an iron rod located as shown on said 7/12/07 Gates map. Erwin R. Waibel and Margaret Waibel Scott acquired their interest in said property by deed from Maria Waibel to Erwin R. Waibel and Margaret Waibel Scott dated November 26, 1997 and recorded in Haddam Land Records, Volume 215, Page 215. (Exhibit B.) Said Maria Waibel acquired the property described in Attachment A in 1942, Well prior to the discontinuance or abandonment of Dish Mill Road and her ownership continued to the date of said conveyance to her children in 1997.