Opinion
CV186023034S
12-03-2019
Elizabeth O’Bymachow v. Anthony Jacozzi
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Frechette, Matthew E., J.
MEMORANDUM OF DECISION
FRECHETTE, J.
The question before the court is whether the plaintiff is entitled to a portion of real property by adverse possession. The plaintiff has sustained her burden of proof as to a part of the property but not the other.
FACTUAL BACKGROUND
The plaintiff, Beth O’Bymachow, owns a plot of land that lies west of the disputed parcel (parcel). The defendant, Anthony Jacozzi, owns a plot of land that lies east of the parcel. The two plots share a boundary line, which is in dispute. The plaintiff purchased her property in 2001, and the defendant acquired title to his property in 2015. Prior to the defendant’s ownership, Mr. and Mrs. Larsen (Larsens) owned the property.
The plaintiff commenced this action on October 31, 2018, claiming that she is entitled by adverse possession to a seventeen-inch-wide strip of land that lies between her and the defendant’s properties, and that the defendant unlawfully entered and attempted to interfere with the plaintiff’s access and use of the parcel. There is no dispute that the parcel in dispute is described by deed as being the defendant’s property. The defendant filed his answer and raised a special defense that he is the owner of the parcel. On June 27, 2019, at trial, this court heard from nine witnesses, including the plaintiff, the defendant, the parties’ neighbors, and a surveyor.
Pursuant to the defendant’s motion to strike, count 4 of the amended complaint was stricken.
The plaintiff testified regarding her uses of the parcel. Specifically, she said that in 2005, she put in place a vinyl fence on the same line as the wooden fence that was erected there before she purchased the property. This fence only runs on the portion of the parcel north of the driveway portion of the parcel. She also described how she threw stone on the driveway portion of the parcel. The plaintiff, however, admitted that she had a good relationship with the Larsens, which led the plaintiff to, with the permission and thanks of the Larsens, mow the grass and remove snow from the Larsens’ driveway. She also admitted that she did not pay any taxes on the parcel.
Neighbors, namely Lynn Davis, Mark Granata, and Graham Gill, testified that they saw plants and flowers adjacent to the vinyl fence. Paul Reynolds, a surveyor, was the only one who testified that he did not recall seeing vegetation or a garden in the area west of the vinyl fence. Reynolds, however, noted an encroachment on the defendant’s property.
Davis and Gill and other witnesses said that this was a very friendly neighborhood and stated that many people would cut through everyone’s lots, including those of the plaintiff and the defendant’s predecessor in title, to go from one place to another. The neighborhood, including the area in dispute, was very much a "live and let live" area, with many people traveling over each other’s property with no dispute. The defendant testified that the plaintiff did not stop him from using the parcel.
DISCUSSION
In first count (adverse possession) and the second count (quiet title) of her complaint, the plaintiff seeks to obtain title by adverse possession to a strip of land (parcel) that lies between the parties’ properties. In her third count, the plaintiff alleges the defendant has trespassed on the land she claims. The defendant argues that the plaintiff’s claim fails because (1) the plaintiff intermittently used the parcel; (2) she had a friendly relationship with the defendant’s predecessor; (3) neighbors walked over the parcel; and (4) the small size of the parcel would not provide the true owner with notice that the plaintiff would someday claim ownership by adverse possession.
In Clark v. Drska, 1 Conn.App. 481, 488-89, 473 A.2d 325 (1984), our Appellate Court stated: "Where a party pursuant to General Statutes § 47-31 seeks to quiet title, the trial court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title ... The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of the adverse possession of the other." (Citations omitted.) As required by Clark, the court here initially determines that the defendant is the record title owner of the land over which the plaintiff claims adverse possession.
"The essential elements of an adverse possession sufficient to create a title to the land in the adverse possessor are that the owner shall be ousted of possession and kept out uninterruptedly for a period of fifteen years, by an open, visible, and exclusive possession by the adverse possessor, without the license or consent of the owner ... The doctrine of adverse possession is to be taken strictly." (Citation omitted; internal quotation marks omitted.) Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968). "A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof." (Internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 640, 960 A.2d 1083 (2008). "Where title is claimed by adverse possession, the burden of proof is on the claimant." Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980).
"[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.) Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 640, 960 A.2d 1083 (2008).
Two areas are in dispute. Both are on the defendant’s property. The first is comprised of a roughly seventeen-inch-wide strip between the parties’ driveways that runs to the southerly boundary. The second is comprised of a roughly seventeen-inch-wide strip that runs close to the northerly boundary and lies along the easterly boundary of the plaintiff’s property and west of the plaintiff’s vinyl fence (fence). Each area deserves separate consideration. This court will consider the driveway portion first.
I. Adverse Possession
A. Driveway Portion of the Parcel
1. Open and Visible
"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." (Internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn.App. 361, 368, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008). Occasional, temporary intrusions are not sufficient to put the record owner on notice that an adverse claim is being made; Ahern v. Travelers Ins. Co., 108 Conn. 1, 6, 142 A. 400 (1928); nor are sporadic activities. See Meshberg v. Bridgeport City Trust Co., 1 Conn.App. 10, 13, 467 A.2d 685 (1983) ("Whatever might be thought of the sporadic activity of the plaintiff ... the trial court could reasonably find ... that the plaintiff failed to prove herself an adverse user having exclusive and continuous possession [citations omitted]").
In the present case, the evidence shows that (1) the plaintiff occasionally stepped onto the driveway portion of the parcel when she got out of her car and (2) that some gravel that she threw on her driveway spilled onto the parcel. Such uses and activities are, at best, occasional and temporary intrusions. In consideration with the small size of the disputed area, i.e., seventeen-inch-wide strip, they do not establish the open and visible elements of adverse possession because they would not be sufficient to put the record owner on adequate notice that a trespass is occurring.
Nevertheless, the plaintiff argues that her use was not "subtle" because the evidence unequivocally show that she used the parcel, and she analogizes the present case to Zhang v. 56 Locust Road, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6015791-S (January 13, 2016, Povodator, J.), aff’d, 177 Conn.App. 420, 172 A.3d 317, cert. denied, 327 Conn. 986, 175 A.3d 44 (2017). Certainly, there is indication that the plaintiff and her guests occasionally stepped on the parcel. The court agrees with the defendant, however, that this case has the "subtlety" of a minor encroachment- both in terms of size and of use- and is, therefore, distinguishable from Zhang. The disputed property in Zhang exceeded half acre in size, and the activities on it included "a summer camp for instruction in horse care and riding lessons; stabling and grooming of horses; [and] private horseback riding lessons." (Internal quotation marks omitted.) Id. In contrast, the parcel here is seventeen inches in width. The plaintiff stepped on it occasionally when she got out of her car, and some gravel that she threw on her driveway spilled onto the parcel. Such uses are "subtle," and do not constitute open and notorious use, particularly considering the friendly nature of the relationship between the plaintiff and the Larsens.
2. Hostility
"To acquire title by adverse possession, the possession must be hostile from its inception." Woodhouse v. McKee, 90 Conn.App. 662, 672, 879 A.2d 486 (2005). "Hostile occupancy implies lack of consent." Bennett v. Bowditch, 163 Conn.App. 750, 757, 137 A.3d 81 (2016). "Hostile possession can be understood as possession that is opposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own." (Internal quotation marks omitted.) Mulle v. McCauley, 102 Conn.App. 803, 814, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). "In determining what amounts to hostility, the relation that the adverse possessor occupies with reference to the owner is important." (Internal quotation marks omitted.) Woodhouse v. McKee, supra, 673. "The cordial relationship that existed between [the neighbors] would belie any contention of possession by claim of right, even if the court could infer such claim." Hodos v. Kamercia, Superior Court, judicial district of Middlesex, Docket No. CV-99-0089046-S (February 10, 2003, Gordon, J.) (34 Conn.L.Rptr. 47).
Here, the evidence shows that the plaintiff had a friendly relationship with the defendant’s predecessor owner, Mr. and Mrs. Larsen. The plaintiff testified that the Larsens were not physically fit so she mowed their grass and removed snow from their driveway with their consent and gratitude. In fact, she testified that the Larsens asked and gave her permission to continue performing that work to help them. The plaintiff has not proved any hostile possession of this portion of the parcel.
3. Claim of Right/Ouster
Ouster is defined as "[t]he wrongful dispossession or exclusion of someone ... from property ..." Black’s Law Dictionary (11th Ed. 2019). "By ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title ..." (Internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., supra, 111 Conn.App. 644. "[A] claim of right means that the entry by the claimant must be in accordance with a claim to the property as the claimant’s own with the intent to hold it for the entire statutory period without interruption." (Internal quotation marks omitted.) Caminis v. Troy, 300 Conn. 297, 306 n.10, 12 A.3d 984 (2011). "Payment of property taxes is powerful evidence to show that the occupier claimed the land as his own ... although it is not dispositive." (Citations omitted; internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn.App. 839, 849, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).
Here, the plaintiff, at no point, prevented the defendant from using the driveway portion of the parcel or manifested an intent to claim the driveway portion as her own. Moreover, the plaintiff submitted no evidence that she paid real estate taxes on the parcel. Therefore, the claim of right element was met. Accordingly, the plaintiff has not sustained her burden of proof in establishing the elements of adverse possession by clear and convincing evidence as to the driveway portion of the parcel.
B. Fenced Portion of the Parcel
In contrast with the driveway portion, the plaintiff has satisfied her burden of proof as to the fenced portion of the parcel.
1. Open and Visible
Activities that occurred within the fenced portion is analogous to the facts of Anderson v. Poirier, 121 Conn.App. 748, 997 A.2d 604, cert. denied, 298 Conn. 904, 3 A.3d 68 (2010). In Anderson, contrary to what the parties believed, the property boundary line, as indicated by surveys, was approximately 2.5 feet into the plaintiffs’ property. Id., 750. The boundary line ran through a portion of the plaintiffs’ parking area; side yard and patio; and onto a portion of their boat dock. Id. The plaintiffs’ activities on the disputed strip of land consisted of gardening; construction; maintenance and use of a driveway, sidewalk, front and back lawns, and a dock. Id., 754.
The court stated: "The legal significance of the open and visible element [of adverse possession] is not ... an inquiry as to whether a record owner subjectively possessed an understanding 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." (Internal quotation marks omitted.) Id., 753-54. The court found that "they conducted various activities on the disputed strip of land throughout the statutory period consistent with the residential nature of the area ..." Id., 754. In affirming the trial court’s judgment rendered in favor of the plaintiffs after trial, it concluded: "[T]he plaintiffs’ activities demonstrated sufficient open and notorious possession to establish the plaintiffs’ adverse possession claim." Id.
In the present case, the evidence shows that in 2005, the plaintiff erected a vinyl fence on the portion of the parcel to the north of the driveway area, which replaced the wooden fence that existed along the same line. Also, they show that the plaintiff, as if the parcel was her own, built and maintained a garden in the area west of the fence for the requisite period of fifteen years. Further, the pictorial evidence show that only the plaintiff used the area for social events. These activities cumulatively demonstrate open and visible possession.
The evidence shows that the wooden fence existed before the plaintiff purchased her property in 2001. This area is to be distinguished from the area near the driveway, where the defendant recently erected a fence.
2. Exclusive "In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating the land to his own use and the exclusion of others." 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 810, 54 A.3d 232 (2012). Here, the evidence shows that the plaintiff set up and kept a garden, and she used the area for social occasions to the exclusion of the defendant. Such activities are consistent with the actions of a landowner.
Nevertheless, the defendant argues that because neighbors walked over the parcel to get from one location to another, the plaintiff’s possession was not exclusive. This court disagrees. The evidence does not show that the neighbors walked over the fenced portion. Even if they did, "[t]he occasional ‘cutting through’ by the neighbors does not undermine the fact that the plaintiffs consistently and exclusively acted as owners of the property." Anderson v. Poirier, Superior Court, judicial district of New Haven, Docket No. CV-07-5015477 (March 13, 2009, Keegan, J.), aff’d, 121 Conn.App. 748, 997 A.2d 604, cert. denied, 298 Conn. 904, 3 A.3d 68 (2010). On the basis of the evidence, the plaintiff has established this element.
3. Claim of Right
"[A] claim of right does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner’s right to possession." (Internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 768, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007). When "[i]n every visible respect ... the [adverse possessor] manifest[s] her unequivocal intent to use the property as her own and without the consent of the owner"; (internal quotation marks omitted) id., 769; she meets the claim of right element. Anderson v. Poirier, Superior Court, judicial district of New Haven, Docket No. CV-07-5015477 (March 13, 2009, Keegan, J.), aff’d, 121 Conn.App. 748, 997 A.2d 604, cert. denied, 298 Conn. 904, 3 A.3d 68 (2010). As discussed in the two preceding sections, the evidence in the present case shows that the plaintiff used and maintained the fenced portion of the parcel as if she was the owner thereof. Therefore, the plaintiff demonstrated a claim of right over the fenced portion.
4. Hostility
The evidence shows that for over fifteen years, the plaintiff, through her use and maintenance of the fenced portion of the parcel, intended to possess it as her own to the exclusion of others. The evidence shows that she never sought or obtained consent from the defendant or his predecessor in title. In contrast with the driveway portion, the evidence does not show that the plaintiff helped the Larsens with yardwork or snow removal on the fenced portion of the parcel. Because the plaintiff has sustained her burden of proof in establishing each element of adverse possession as to the fenced portion of the parcel, she is entitled to claim title to it.
The title is limited to this portion of the parcel only. "When not claimed under color of title, adverse possession is limited to the area of land actually possessed ... It can only extend as far as [the] claimant has actually occupied and possessed the land in dispute ..." (Internal quotation marks omitted.) Anderson v. Poirier, supra, 121 Conn.App. 755
The parcel of land the plaintiff has acquired by adverse possession is shown on a map which is Plaintiff’s exhibit 38. The court will utilize said map to more particularly describe the parcel of land acquired by the plaintiff. Said parcel is a certain piece of parcel of land that is a portion the land designated as "Area Claimed/Occupied by O’Bymachow" on a map entitled: "Zoning Location Survey, Land of Elizabeth O’Bymachow, Lots 29 & 30- Plot 10- Harbor View, 11 South Parkway, Clinton, Connecticut." Scale 1" = 10,’ dated 10/04/2018, revised 10/17/2018 by Ronald C. Hurlburt Land Surveying, LLC Licensed Surveyors, the parcel acquired being more particularly bounded and described as follows:
Commencing at a wood post located on the common division line between premises known as 11 South Parkway and 9 South Parkway. Said wood post is 56 feet, more or less, from the northerly street line of South Parkway and is shown on said map.
Thence running N 10° 17’57" W along said common division line of O’Bymachow and of Jacuzzi, 40 feet, more or less to a wooden fence;
Thence running along said wooden fence N 70° 55’58" E, 1.04 feet, through land of said Jacuzzi to the corner of a vinyl fence, shown on said map;
Thence running along said vinyl fence S 10° 29’31" E, 40 feet, more or less through land of Jacuzzi to a point;
Thence turning and running in a generally westerly direction, 1 foot, more or less, to the wood post and the point and place of beginning.
II. Trespass
The plaintiff has also alleged trespass by the defendant. "[T]he essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Internal quotation marks omitted.) Vaccaro v. Shell Beach Condominium, Inc., 169 Conn.App. 21, 46 n.29, 148 A.3d 1123 (2016), cert. denied, 324 Conn. 917, 154 A.3d 1008 (2017). Here, the plaintiff has not presented any evidence that the defendant entered the fenced portion of the parcel. On the basis of the evidence, the plaintiff has not sustained her burden as to this claim.
For the foregoing reasons, the court finds that: (1) the plaintiff has met the requirements of adverse possession as to the fenced portion of the parcel and has established the existence of each requisite prong by clear and convincing evidence; (2) she has not sustained her burden of proof in establishing each element of adverse possession as to the driveway portion of the parcel and (3) she has not sustained her burden as to the trespass claim.
Judgment may enter in favor of the plaintiff as to the first and second count of the complaint; the plaintiff has acquired title by adverse possession to the parcel of land described herein. Judgment may enter in favor of the defendant as to the third count of the complaint.