Opinion
No. CV04-0103655 S
September 1, 2005
MEMORANDUM OF DECISION
I. BACKGROUND
The plaintiff, O'Neill Camp, Inc., (OCI) is the owner of real property at Lake Pocotopaug in East Hampton, Connecticut. The defendant Stuart's parcel abuts the O'Neill parcel on the South, and therefore the plaintiff's southerly boundary is the defendant's northerly boundary. One of the issues in the case is the location of the common boundary line. The disputed land is shown as a cross hatched area on Plaintiffs' Exhibit #3.
There are three plaintiffs in this case; OCI, 1971 OCI, and O'Neill Cove Association Inc. The plaintiff, 1971 OCI, was incorporated as OCI under Connecticut laws in 1971, and forfeited in 1987 for failure to file reports with the Secretary of State. A second OCI was formed in 1991, to replace the forfeited original OCI, having the same officers as (1971) OCI. On January 19, 2005, the "original" OCI was reinstated and it amended its name to 1971 OCI.
In the First Count of their amended complaint of April 18, 2005, the plaintiffs allege that (1971) OCI acquired the O'Neill parcel by deeds of May 3, 1971 and December 14, 1972; that by a declaration of February 11, 1999, (1991) OCI declared itself a condominium pursuant to Connecticut General Statutes § 47-200 et seq.; and that the plaintiff O'Neill Cove Association, Inc. manages the common elements of the property pursuant to Connecticut law. The plaintiffs further allege that Connecticut's Marketable Record Title Act (MRTA) extinguishes the defendant's claimed interest in the disputed area, and they seek judgment defining the common boundary as shown on a 1971 survey, Exhibit # 2. The plaintiffs also allege that they have acquired title to the disputed area by adverse possession (Second Count). In the Third Count they allege Trespass and in the Fourth Count they allege that they have acquired a prescriptive easement in the disputed area.
In their AD DAMNUM, the plaintiffs seek to quiet title to the disputed area.
In his Answer dated May 17, 2005, the defendant denies the plaintiffs' claims of title by deed and by adverse possession, denies the claim of trespass and the claim to a prescriptive easement. The defendant also denies that the plaintiffs submitted the property to the Common Interest Ownership Act. The defendant has raised two special defenses; the first that the plaintiff, O'Neill Cove Association, Inc., lacks authority to maintain this litigation; and the second that the plaintiff 1971 O'Neill Camp, Inc., lacks standing. On Page 2 of his Post-Trial Brief the defendant concedes that the plaintiff (1991) OCI has record title to the O'Neill Parcel.
II. JURISDICTIONAL ISSUE
In his FIRST SPECIAL DEFENSE, the defendant alleges that neither 1971 O'Neill Camp, Inc. nor (1991) O'Neill Camp, Inc. had authority or ability to submit the property at issue to the Common Interest Ownership Act (CIOA), and that O'Neill Cove Association, Inc. is without authority to institute this litigation.
In his SECOND SPECIAL DEFENSE, the defendant alleges that 1971 OCI is without standing in this litigation.
In his Post-Trial Brief dated June 30, 2005 (pages 27-28), the defendant limits his argument on the Special Defenses to two points:
1. The common interest community was not properly formed, and that therefore O'Neill Cove Association has no standing to maintain this action.
2. Title cannot be quieted in 1971 O'Neill Camp, Inc. because (1991) OCI owns the property. The defendant claims that O'Neill Cove Association, (OCA), has no authority to bring this lawsuit, because at the time of submission to CIOA in 1999, (1991) O'Neill Camp, Inc. (OCI), didn't own the parcel and therefore couldn't have properly submitted it, which would mean that OCA therefore has no standing to institute litigation under CIOA.
The defendant also claims that title cannot be quieted in 1971 OCI, because on February 13, 2005, 1971 OCI conveyed the property to (1991) OCI.
Because the question of standing potentially challenges the court's jurisdiction, it must be addressed.
We begin our analysis by underscoring that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. Ramos v. Vernon, 254 Conn. 799, 808, 761 A.2d 705 (2000). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). "This court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990). "[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear." Sasso v. Aleshin, 197 Conn. 87, 89 495 A.2d 1066 (1985). Moreover, "[t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." Sadloski v. Manchester, 228 Conn. 79, 83, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). "Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Harris v. New Milford, 259 Conn. 402, 409-10, 788 A.2d 1239 (2002).
Webster Bank v. Zak, 259 Conn. 766, 774-75 (2002).
The Common Interest Ownership Act (CIOA), codified at General Statutes § 47-200 et seq., is applicable to most types of common interest communities created in the Sate of Connecticut on or after January 1, 1984. General Statutes § 47-214. The CIOA also replaces the Condominium Act of 1976. General Statutes § 47-214. "CIOA was enacted by the Connecticut legislature in 1984 in order to provide developers, lenders and title insurers with flexibility and certainty in establishing common interest communities, as well as providing prospective unit owners and unit owners' associations with consumer protection rights such as disclosure and warranty guidelines . . . CIOA was modeled upon the Uniform Common Interest Ownership Act, 101, 7 U.L.A. 231 (Rev., 1992)." (Citations omitted; internal quotation marks omitted.) Ward v. TRC Realty Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV89 0357578 (July 14, 1992, Schaller, J.) ( 1 Conn. L. Rptr. 28); R. Burke, Connecticut Real Property Law, 51 ("[CIOA] is based almost entirely on the Uniform Common Interest Ownership Act"). Stuart claims that the association does not have authority under the CIOA to institute litigation because the condominium known as O'Neill Camp, Inc. was not properly formed. Stuart specifically points out that because the plaintiff (1991) OCI did not become the record owner of the O'Neill parcel until February of 2005, it was unable to submit the parcel to the CIOA in 1999.
The CIOA provides that, "`Condominium' means a common interest community in which portions of the real property are designated for separate ownership and the remainder of the real property is designated for common ownership solely by the owners of those portions. A common interest community is not a condominium unless the common elements are vested in the unit owners." General Statutes § 47-202(8). "A common interest community may be created pursuant to this chapter only by recording a declaration executed in the same manner as a deed . . . The declaration shall be recorded in every town in which any portion of the common interest community is located and shall be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's index in the name of each person executing the declaration." General Statutes § 47-220(a). "`Declarant' means any person or group of persons acting in concert who (A) as part of a common promotional plan, offers to dispose of his interest in a unit not previously disposed of or (B) reserves or succeeds to any special declarant right." General Statutes § 47-202(12). "`Declaration' means any instruments, however denominated, that create a common interest community, including any amendments to those instruments." General Statutes § 27-202(13).
"Definition (12), `Declarant,' is designed to exclude persons who may be called upon to execute the declaration in order to ratify the creation of the common interest community, but who are not intended to be charged with the responsibilities imposed on all declarants by the Act if that is all they do. Examples of such persons include holders of pre-existing liens and in the case of leasehold common interest communities, ground lessors . . . Other persons similarly protected by the narrow wording of this definition include real estate brokers, because they do not offer to dispose of their own interest in a unit. Similarly, unit owners reselling their units are not declarants because these units were `previously disposed of' when originally conveyed. If the association, itself, or in conjunction with another declarant, is offering units for sale to others, and if those units have not previously been sold or otherwise disposed of, then the association itself is a declarant . . ." Unif. Common Interest Ownership Act (1994), § 1-103, 7 U.L.A. 485 (1997). "The parties owning the property which is to become the common interest community must join in the execution of the declaration. One notable exemption to this rule pertains to the declarant's ability in model community law states to reserve the right to add unspecified land possibly owned by others to the declaration of a planned community." 7 R. Powell, Real Property (2000) § 54.03[2][a].
The Connecticut Supreme Court has considered, in the context of the Condominium Act of 1976, the consequences of flawed condominium declarations. In Hall Manor Owner's Association v. West Haven, the plaintiff association brought a declaratory judgment action to determine entitlement to municipal refuse collection. 212 Conn. 147, 148, 561 A.2d 1373 (1989). In 1983, a document entitled "Declaration of Covenants, Easements, Reservations and Tenancies in Common" was recorded on the city land records. Id., 148. The declaration purported to create "A Planned Unit Development Modular Complex," dividing a seventy-six unit apartment building into nineteen "modules" each containing four apartments. Id. Ownership of each module was conveyed to the respective purchaser in fee simple. Id. Ownership of the land and common improvements, excluding the buildings, was conveyed to the association, a corporation comprised of each of the module owners. Id., 148-49. The defendant city claimed that the complex was not a "private dwelling" within the meaning of the ordinance providing for refuse collection. Id., 150. The plaintiff commenced a declaratory judgment action, contending that the development was a "private dwelling" and thus entitled to refuse collection. Id. Subsequent to the trial court ruling in the defendant's favor, the plaintiff appealed to the Supreme Court alleging, inter alia, that the development was a condominium. Id., 150-51. The court found that the plaintiff had not complied with mandatory provisions of the Condominium Act, General Statutes § 47-68a et seq., with regard to the declaration it recorded. Id., 151. The declaration was deficient in that the name of the development did not include the word "condominium" nor was the name followed by the words, "a condominium." Id., 151-52. Additionally, the court noted that the development was referred to throughout the declaration as "A Planned Unit Development Modular Complex." Id. Lastly, the declaration did not refer to a land survey as required by statute. Id., 152. Accordingly, the court concluded that the development was not a condominium. Id., 153.
In Celentano v. Oaks Condominium Association, 265 Conn. 579, 830 A.2d 164 (2003), the plaintiffs leased the land underlying the complex to the condominium owners. Id., 583-84. The plaintiffs commenced suit when the defendant association refused to remit the rental payments. Id., 585. The association specially alleged that the ground lease was unenforceable because the hybrid condominium form, one in which the building units were owned and the land was leased, violated the Condominium Act, General Statutes § 47-68a et seq. Id. 583. Recognizing the rule that compliance with the requirements of the Condominium Act is necessary to obtain legal status as a condominium, the court found that the relevant provisions of that act did not expressly prohibit a hybrid-type condominium and further concluded that such condominiums were permitted under the act. See id., 592-99.
Hall Manor and Celentano are inapposite to the present case. Here, the plaintiff, (1991) OCI, clearly intended to submit the property to the CIOA and there is no issue as to whether the property is of the type that may be submitted to the CIOA. Nevertheless, based on the definition of declarant set forth in the CIOA, (1991) OCI could not have executed and recorded a condominium declaration pursuant to the CIOA in 1999, because it did not have any interest in the property that it could dispose of. See General Statutes § 47-202(12). However, the court must still consider the effect of the corrective measures subsequently taken. The reinstated 1971 OCI conveyed the property to the plaintiff (1991) OCI in February 2005, and the plaintiffs established that the plaintiff (1991) OCI re-adopted the condominium declaration and bylaws on May 17, 2005. The CIOA states that: "[t]he principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter." General Statutes § 47-207.
Another case considering somewhat similar issues is Isaac v. Mount Sinai Hospital, 3 Conn.App. 598k, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). There, the court considered, in the context of a motion to dismiss, whether a plaintiff who mistakenly believed that she was the administratrix of a decedent's estate had standing to bring a wrongful death suit on behalf of the estate. Id., 599. The court reasoned that because General Statutes § 52-555 creates a cause of action for wrongful death that did not exist at common law, and because the statute only permits such action to be brought by a executor or an administrator, the plaintiff was without standing where she was not issued letters of administration until one year after she brought suit. Id., 600-01. Isaac is factually distinguishable from the present case because here, the plaintiffs' cause of action was not a creature of the CIOA. Thus, the plaintiff association's status under the CIOA is not dispositive of the viability of the causes of action set forth in this case.
A search of law outside our jurisdiction reveals a case decided by the Oregon Supreme Court, Dickey v. Barnes, 268 Or. 226, 519 P.2d 1252 (1974), that is helpful in considering the issue before this court. In Dickey v. Barnes, the plaintiffs purchased certain land from the United States Government under a contract of sale from the United States Government. Id., 227-28. On the same day, the plaintiffs filed a declaration purporting to submit such land to Oregon's condominium law. Id., 228. Almost all of the units created under the declaration were subsequently conveyed. Id., 229. At some point, however, title insurers refused to underwrite coverage on the declared property, having concluded that the plaintiffs had not complied with Oregon's condominium statute. Over a period of time, the plaintiffs failed to pay a substantial amount in monthly assessments on the units that they owned and eventually filed a declaratory judgment action to nullify the condominium development. Id., 229-30. The trial court denied any relief to the plaintiffs on the basis of estoppel and unclean hands. Id., 230.
On appeal, the Oregon Supreme Court agreed with the trial court's holding, but on different grounds. Id. First, the court instructed that the plaintiffs could have sought relief through reformation. Id., 230-31. "As we have pointed out, it is clear that the declaration was filed for the purpose of bringing the Blue Ridge development within the provisions of Oregon's condominium law (ORS 91.505 et seq.). Therefore, assuming that the declaration did not conform to the statutory requirements in some respects, these deficiencies, if any, would constitute a mistake in the transaction between the parties, thus making the instrument eligible for reformation in equity." Id., 230. Nevertheless, the court determined that if the condominium statute required a declarant to possess legal title to the property, the requirement was satisfied when the plaintiffs acquired legal title after the declaration was filed. Id., 231. "[The plaintiffs] argue that the word `owner' in ORS 91.525 [now ORS 100.100] means `legal owner' and thus the declaration is of no effect because it was filed by an unqualified party. This argument does not appeal to us. As we have noted, plaintiffs acquired legal title after the filing of the declaration. Assuming that the statute requires the declarant to have legal title, that requirement is now satisfied. We can see no reason for refusing to recognize it as satisfying the requirement of the statement, even if it is assumed that legal title is essential to perfect a condominium under the statute." Id.
"If the declarant is not the fee owner of the properly, the fee owner and the vendor under any instrument of sale shall also execute the declaration for the purpose of consenting to the property being submitted to the provisions of this chapter." Or.Rev. Statutes § 100.100 (2) (2003).
Here, the plaintiffs are asking the court to quiet title on disputed property, not to reform an instrument that purports to be a condominium declaration under the CIOA. As a practical matter, however, it is undisputed that (1991) OCI now owns the O'Neill parcel. Therefore, if the CIOA requires a declarant to be the owner of property in order to execute and record a condominium declaration, the requirement has now been satisfied. Furthermore, the plaintiffs established that (1991) OCI adopted the declaration and bylaws previously recorded in the East Hampton land records. Under the heading, "Management of Common Interest Communities," the CIOA states that, "[a] unit owners' association shall be organized no later than the date the first unit in the common interest community is conveyed . . ." General Statutes § 47-243. The CIOA then sets forth the various powers of the association, stating in relevant portion, "[e]xcept as provided in subsection (b) of this section, and subject to the provisions of the declaration, the association, even if unincorporated, may . . . [i]nstitute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community . . ." General Statutes § 47-244(a)(4). Because a unit owners' association, O'Neill Cove Association, Inc., was organized as the CIOA requires, the association is permitted to avail itself of the right to institute litigation. The area includes property denoted as limited common elements of the condominium community, thus, the matter affects the common interest community. Accordingly, the association has standing in this case.
Stuart's second special defense is that the court cannot quiet title in 1971 OCI and that 1971 OCI lacks standing because it conveyed all of its right, title and interest in the property to (1991) OCI. A plaintiff in this matter is (1991) OCI, the record owner of the O'Neill Parcel as of February 2005. This point was conceded by Stuart. Accordingly, (1991) OCI has standing in this case, even if 1971 OCI does not.
III. FACTS
Having reviewed all the trial testimony, all the exhibits and post-trial briefs, and having evaluated the credibility of the witnesses, the court finds the following facts.
A. RECORD TITLE CT Page 12176
The parties' respective claims of title go back to the common grantor, Joseph D. Barton, who acquired all of the land as part of an eleven (11) acre parcel by deed of November 10, 1903.
1. O'Neill Chain, from 1903 to 1970
The O'Neill parcel is the total of the four parcels conveyed in Exhibits 30, 31, 32 and 28. Exhibit 28, the 1923 deed from Barton to John O'Neill, with an attached diagram, established the southerly boundary of the O'Neill parcel. That southerly boundary is accurately plotted on Exhibit K.
John O'Neill devised the property to Mary Veronica O'Connor and Frances O'Neill in 1934 by a Certificate of Devise, (Exhibit 17), which described the O'Neill parcel as bounded southerly "on land now or formerly of Joseph D. Barton in part, and in part by Lake Pocotopaug."
Through a series of subsequent conveyances, Mary Veronica O'Connor acquired an undivided fee simple in the O'Neill parcel. Each of the instruments in this chain of title recited that "the premises are the same as those devised to Frances O'Neill and Mary Veronica O'Connor and described in the Certificate of Devise from the Estate of John O'Neill . . ." None of those instruments altered the southerly boundary which was established by the 1923 deed from Barton to John O'Neill.
2. Stuart Chain of Title
The defendant, Stuart, claims no interest in the property conveyed by Barton to O'Neill. His ownership is of the last portion of the original eleven acres that remained in Barton after his conveyance of the O'Neill parcel to John O'Neill by the 1923 deed. By conveyances down from Barton and other predecessors in title to Stuart, he acquired it by deed of July 18, 1988. Each of the instruments in the Stuart chain of title called out the northerly boundary as land now or formerly of John O'Neill.
3. Start of Conflict between O'Neill and Stuart Chains of Title
No conflict existed between these chains until after Mary Veronica O'Connor acquired her undivided interest in the O'Neill parcel in 1970. O'Connor created a conflict when she executed a quitclaim deed dated May 3, 1971 (Exhibit #23), and a warranty deed dated December 14, 1972, both to O'Neill Camp as grantee. Each of these deeds referred to a map "Prepared for Mary Veronica O'Connor" by Megson Hyppa dated 1971 (Exhibit 2). The southerly boundary called out in these deeds and depicted in this map is farther south than that created by the 1923 deed from Barton to John O'Neill. It cannot be reconciled with that deed and its attached diagram. The diagram is incorporated by reference into the deed. No deed into O'Connor describes a southerly boundary consistent with her deeds out to OCI, or consistent with the boundary depicted by both the Kaye Map, (Ex. 1), and the 1971 Hyppa Map.
4. Defendant's Denial That Plaintiffs Submitted Property to the Common Interest Ownership Act
OCI, the grantee in the two O'Connor deeds of May 3, 1971 and December 14, 1972, was dissolved in 1987 for failure to file reports with the Secretary of State. A second OCI was formed in 1991, having the same principals and name as the original, dissolved one. On January 19, 2005, the original, dissolved OCI was reinstated, and amended its name to "1971 OCI." On February 13, 2005, 1971 OCI quitclaimed its interest in the O'Neill parcel to (1991) OCI, which had been created because the original (1971) OCI was dissolved in 1987.
On May 17, 2005, (1991) OCI was in existence, as was O'Neill Cove Association, Inc. (Exhibit #39 and #40).
On May 17, 2005, while this trial was in progress, (1991) OCI recorded in East Hampton a NOTICE RE ADOPTION OF DECLARATIONS AND BYLAWS, in which (1991) OCI stated that the original (1971) OCI which was dissolved in 1987, and which was reinstated on January 19, 2005 and changed its name on that date to 1971 OCI, has quitclaimed any interest in the 1971 and 1972 deeds to (1991) OCI, and that "by this Notice hereby adopts and incorporates all terms, conditions, bylaws, declarations, etc. of the document dated February 11, 1999 and entitled DECLARATION AND BYLAWS OF O'NEILL COVE recorded in Vol. 305 page 439 of the East Hampton Land Records."
5. Adverse Possession and Prescriptive Easement
When (1971) OCI became the owner of the O'Neill parcel, there were four owners of the six residential units shown on Exhibit # 2. The Brooks family owned Unit 1; Robert Hayes' parents owned Units 2 and 6, the McGrath family owned Units 3 and 5, and the Coens owned Unit 4. Unit 7 was vacant land. In 1971 there were only summer residents. Robert Hayes has lived full-time in Unit 6 since 1978, but has been going there since his birth in 1954.
Since 1987, Mr. Hayes and his children have occasionally used the area from the mouth of the cove on the north side of the brook down almost to Old Marlborough Road. In the summertime the children would play in there occasionally, and once in a while at other times in the year. They would set-up a "camp" with chairs etc. and Mr. Hayes since 1978 has walked around in that area a couple of times a month. From 1978 to 1981 Mr. Hayes took firewood from that area until he stopped heating with wood. From 1987 to date, the Hayes children sometimes left furniture and toys in this area. From about 1960 to 1980 the McGrath children, and from 1980 to about 2000, the McGrath grandchildren used this area to play around in with toys. Some of this play activity took place on the Hayes property, and some of it took place in the disputed area. The Stuart children also played in these areas on occasion. No one who was part of the OCI ever asked permission of Mr. Stuart or his predecessors to use this area. The above described use can be described as occasional or sporadic, and as casual and episodic.
Mr. Stuart started to do some clearing of vegetation on the north side of the brook in the late 1990s, and when it continued, OCI sent him a letter in 2000 asking him to stop.
From 1988 through 2003, the defendant occasionally saw the Hayes children playing in and near the disputed area where there were trees, vegetation and the brook. The defendant never asked the children to leave the area, and his children used these areas in like manner, and played with the OCI children.
From the 1970s on, OCI wanted to leave the area with trees and vegetation in its natural state as a barrier providing privacy.
With respect to the swamp area, in 1971 the area marked as "Inlet" on Exhibit 2, was basically a swamp; lower in the winter, with more water in the summer. In the summer, a person could come in with a canoe, or a rowboat with a motor, which could be tipped up until the water was deep enough.
On a virtually daily basis, in the summer, from 1971 until the dredging in 1998, members of OCI used this inlet area for fishing, canoes, rowboats, and kids played in the area with nets. The court finds the testimony of Robert Hayes in this regard to be credible. This daily activity was visible from the defendant's property.
Once the dredging occurred, the inlet or cove became larger and deeper, and the swampy area basically became the cove, and members of OCI brought in boats, used it for swimming, and put in docks. Therefore, from 1971 to date, the swampy area (the Cove after the 1998 dredging) has been used daily during the summer in an open, visible, continuous and uninterrupted manner. This use was not occasional and sporadic.
Until 2003, OCI paid taxes on the disputed property, but since then the defendant has paid the tax on that land because he filed a survey with the Town which indicated that he, and not the plaintiffs, owned the disputed area.
At no time did the plaintiffs seek permission from the defendant or his predecessors to carry on any of their activities in the disputed area. They believed they owned the property.
IV. CONCLUSIONS A. Title by Deed (First Count)
The burden of proof in this case is on the plaintiff to prove that the boundary is where he claims it to be . . . The plaintiff is required to prevail on the strength of his title and not on the weakness of his adversary's claims.
Koennicke v. Maiorano, 43 Conn. App. 1 (1996).
1. The deeds into the plaintiffs did not convey the disputed area because their grantor didn't own that property. The court finds that the testimony of the defendant's expert is persuasive and convincing on this issue.
2. Connecticut Record Marketable Title Act
The plaintiffs claim that any interest the defendant may have had in the disputed area has been extinguished by the Connecticut Record Marketable Title Act.
Sec. 47-33c. Chain of title for not less than forty years creates market record title. Any person having the legal capacity to own land in this state, who has unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in section 47-33d. A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to transfer the interest, either in (1) the person claiming that interest, or (2) some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest; with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest.
Inasmuch as the plaintiffs never owned any interest of any sort in the disputed area, the Act does not apply to this case.
Thus, the plaintiff impermissibly attempts to use the act affirmatively to create a property interest that did not otherwise exist. We have never applied the act so as to create an easement that otherwise did not exist, or to preclude a party involved in a quiet title action from claiming that the party asserting the interest or its predecessor in title never held the asserted interest. That is not the function of the act, nor would it serve the purpose of the act which we previously have described, to apply it in such a manner instead. In keeping with its purpose, the act, subject to certain exceptions, functions to extinguish those property interests that once existed, and would still exist but for the absence from the land records in the affected property's chain of title of a notice specifically reciting the claimed interest. Schulz v. Syvertsen, supra, 219 Conn. 84; Mizla v. Depalo, supra, 183 Conn. 66. In light of our conclusion in part I of this opinion that the plaintiff does not have the property interest that it asserts, namely, the right to traverse the roads of the Belle Haven Land Company, the act is inapplicable to the present case.
In that connection, the plaintiff misconstrues the defendant's claim as one challenging "alleged defects contained within the transfer" of the easement from Witherell to the Field Point Land Company. At no point, however, have the defendants argued that "defects" exist in the deed creating the twenty-foot right-of-way. Instead, the defendants repeatedly acknowledge the plaintiff's right-of-way over Clephane's property and Ogilvy's Belle Haven property. Their claim is that, as a matter of law, the easement asserted by the plaintiff-the right to use the Belie Haven roads-could not have been granted in the manner theorized by the plaintiff.
At oral argument before this court, the plaintiff conceded that application of the act would still require the determination of the type of easement held by the plaintiff.
II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 538-39 (2000).
For the same reason as in the above cited case, specifically, that the plaintiffs never had any interest in the disputed area, the defendant's title by deed is not affected by the Connecticut Record Marketable Title Act.
The Court finds that the plaintiffs have failed to prove by a fair preponderance of the evidence the essential allegations of the First Count (Quiet Title Action), and the court therefore declares and determines that the boundary line between the Stuart property and the O'Neill property is that which is set forth in Plaintiffs' Exhibit 28, a warranty deed from Joseph D. Barton to John O'Neill, dated July 12, 1923, recorded in Volume 47, Page 545 of the East Hampton Land Records. This northerly boundary line of the Stuart property and southerly boundary line of the O'Neill property is also shown as Property Line Agreement Recommended on a map on file in the East Hampton Town Hall entitled PROPERTY SURVEY, Property of BRETT F. STUART, date August 4, 2003, prepared by Close, Jensen Miller, P.E. (Ex. K).
B. Second Count (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 own and without the consent of the owner." (Internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 622, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001); see also General Statutes § 52-575(a).Ton of the Town, LLC v. Somers Sportsmen's Ass'n., Inc., 69 Conn.App. 839, 842-43 (2002).
"The doctrine of adverse possession is to be taken strictly. [Such a] possession is not to be made out by inference, but by clear and positive proof' Huntington v. Whaley, 29 Conn. 391 [398 (1860)]." Robinson v. Myers, 156 Conn. 517, 516, 244 A.2d 385 (1968). "Clear and positive proof" embodies the same substantive standard as "clear and convincing proof." Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989).
Schulz v. Syvertsen, 219 Conn. 81, 91 (1991).
Under the facts found by the court, the court concludes that the plaintiffs have failed to prove by clear and positive, clear and convincing proof, that the defendant was ousted of his possession and kept out interruptedly for a period of fifteen years, by an open visible and exclusive possession, as to any part of the disputed area.
C. Third Count (Trespass)
Inasmuch as the plaintiffs have not briefed their claim of Trespass other than to state that they "seek a finding of trespass, for the cutting down of trees and a nominal award of $1.00," the court treats that claim as abandoned. See Gallagher v. Gallagher, 29 Conn.App. 482, 484 (1992).
Furthermore, the plaintiffs have not established any possessory interest in the land in question, and therefore cannot recover in Trespass. See Avery v. Spicer, 90 Conn. 576, 579 (1916).
D. Plaintiffs' Claim of the Equitable Doctrine of Acquiescence
In their Reply Brief, the plaintiffs for the first time assert a claim of equitable acquiescence.
This claim is not sustainable for two reasons:
1. It is fundamental that a plaintiff cannot recover on a claim that he has not pleaded. In this case, the plaintiffs did not plead acquiescence.
2. Even if the issue of equitable acquiescence was properly before the court, the court would have to find for the defendant on that issue.
"Acquiescence in the use and development of an area by a landowner is defined as a consent to the boundary as claimed by an adjoining owner and can estop the acquiescing landowner from pursuing a claim of ownership. See DelBuono v. Brown Boat Works, Inc., 45 Conn.App. 524, 533, 696 A.2d 1271, cert. denied, 243 Conn. 906, 701 A.2d 328 (1997). The acquiescence must occur under circumstances that indicate an assent to such a use." Marshall v. Soffer, 58 Conn.App. 737, 744-45, 756 A.2d 284 (2000).
Lacie v. Tomas, 78 Conn.App. 406,412-13 (2003).
When a boundary between adjoining proprietors depends upon conveyances the legal effect of which is uncertain, the acquiescence of one in a line claimed by the other is presumptive evidence that it is the true one.
Lowndes v. Wicks, 60 Conn. 15 (1897).
The legal effect of the applicable conveyances in this case is not uncertain. Furthermore, the plaintiffs have failed to prove that the defendant assented to the boundary claimed by the plaintiffs.
E. Fourth Count (Prescriptive Easement)
Section 47-37 provides for the acquisition of an easement by adverse use, or prescription. That section provides: "No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years." In applying that section, this court repeatedly has explained that "[a] party claiming to have acquired an easement by prescription must demonstrate that the use has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right." Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993).
The claim of right requirement has been farther explained as follows. Use made under a claim of right means use that is made "without recognition of the rights of the owner of the servient tenement." Zavisza v. Hastings, 143 Conn. 40, 46, 118 A.2d 902 (1955). "To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised." Whiting v. Gaylord, 66 Conn. 337, 344, 34 A. 85 (1895). The use must occur without license or permission and must be "unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use." (Internal quotation marks omitted.) Westchester v. Greenwich, supra, 227 Conn. 501.
Crandall v. Gould, 244 Conn. 583, 590-91 (1998).
The standard of proof that is required is a fair preponderance of the evidence.
Gallo-Mure v. Tomchik 78 Conn.App. 699, 704, 705 (2003).
The plaintiffs have not proved that they used the disputed area south of the brook or south of the cove.
With respect to the area north of the brook and east of the cove, extending down to Old Marlborough Road, the court finds that the plaintiffs have not proved by a fair preponderance of the evidence that their use of this area was open, visible, continuous and uninterrupted for fifteen years, and made under a claim of right. The use was too sporadic and casual.
With respect to the once swampy area, which along with the inlet is shown on defendant's "K" as Cove, the court concludes that the plaintiffs have proved by the better, weightier, more persuasive and more convincing evidence, that they have used that area openly, visibly, continuously and uninterruptedly for fifteen years under a claim of right. They have proved this by a fair preponderance of the evidence.
From 1971 to the 1998 dredging, the plaintiffs used the area almost every day in the summer for visible activities, such as use of canoes, rowboats, fishing, frogging, and children using nets to catch whatever they could. Since the 1998 dredging, the plaintiffs have used this area fully as part of the lake, which it now is. The fact that this use was basically a seasonal use does not militate against a prescriptive easement.
Regular and adverse use of property during the summer season is a sufficient basis for a claim of adverse possession.
Roche v. Fairfield, 186 Conn. 490, 501, note 11 (1982).
This same reasoning would apply to a claim of prescriptive easement.
The existence of time between acts of usage does not necessarily destroy continuity of use. Easements that are seasonal or periodical may be acquired by prescription. For example, one may obtain a prescriptive easement by driving cattle to and from a summer range, by using a beach or a driveway only during the summer, by traveling a roadway in the haying season, or by making seasonal use of a path. Likewise, intermittent but recurring use of a rural roadway for hauling wood and other purposes constitutes the required continuity.
Bromelmeier v. Brookhart, 570 N.E.2d 90, 92 (Ind.Ct.App. 3d Dist. 1991); Willis v. Magette, 254 Va. 198, 203, 491 S.E.2d 735, 738 (1997) ('To be continuous, a use need not be daily, weekly, or even monthly."); Restatement of Property § 459 cmt. b.
U.S. on Behalf of Zuni Tribe of New Mexico v. Platt, 730 F.Sup. 318, 322 (D.Ariz. 1990) (use of route by Zuni Indians for religious pilgrimage every four years deemed continuous); White v. Ruth R. Millington Living Trust, 785 S.W.2d 782, 787 (Mo.Ct.App. S.D. 1990) (use of roadway most weekends established prescriptive easement); Johnston v. Bates, 778 S.W.2d 357, 364 (Mo.Ct.App. E.D. 1989) (use of roads in subdivision 8 or 10 times per year for hunting satisfied continuity requirement); Alexy v. Salvador, 217 App.Div.2d 877, 879, 630 N.Y.S.2d 133, 135 (3d Dep't 1995) (claimant may establish prescriptive easement based on appropriate seasonal use); Duke v. Sommer, 205 App.Div.2d 1009, 613 N.Y.S.2d 985, 987 (3d Dep't 1994) (seasonal use of parcel to reach lake was sufficient to establish prescriptive easement); Miller v. Rau, 193 App.Div.2d 868, 869-70, 597 N.U.S.2d 532, 534-35 (3d Dep't 1993) (use of roadway every other weekend during summer months was appropriate seasonal use and satisfied continuity requirement); Perry v. Williams, 84 N.C.App. 527, 530, 353 S.E.2d 226, 228 (1987) (use of roadway during farming season constituted continuous enjoyment); Shellow v. Hagen, 9 Wis.2d 506, 512, 101 N.W.2d 694, 697 (1960) (claimant established prescriptive easement in parking lot by periodic use).
Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984).
Mahoney v. Heebner, 343 Mass. 770, 178 N.E.2d 26, 27 (1961); von Meding v. Strahl, 319 Mich. 598, 613-14, 30 N.W.2d 363, 371 (1948); Miller v. Rau, 193 A.D.2d. 868, 869-70, 597 N.Y.S.2d 532, 534-35 (3d Dep't 1993). See Lee v. Lozier, 88 Wash.App. 176, 185-86, 945 P.2d 214, 219-20 (Div. 1, 1997) (recreational use of dock mostly during summer satisfied continuity requirement).
Ellison v. Fellows, 121 N.H. 978, 981, 437 A.2d 278, 280 (1981); see also Lyle v. Holman, 238 S.W.2d 157, 160 (Ky. 1951) (use of alley for unloading trucks during tobacco market season satisfied requirement of continuity).
Bova v. Vinciguerra, 184 App.Div.2d 934, 934-35, 585 N.Y.S.2d 125, 127 (3d Dep't 1992) (use of path to lake every summer for 11 years was continuous); Hay v. Stevens, 262 Or. 193, 196, 497 P.2d 362, 364 (1972) (continuity requirement met where path to beach was used primarily in summer); Palisades Sales Corp. v. Walsh, 459 A.2d 933, 936 (R.I. 1983).
SD Warren Co. v. Vernon, 697 S.2d 1280, 1282 (Me. 1997) (logging operations over rural roadway were continuous for purposes of prescriptive easement); Burkett v. Smyder, 369 Pa.Super. 519, 523, 535 A.2d 671, 673 (1988) (use of road several times a year initially for access to Christmas tree nursery, and thereafter for hiking purposes, was continuous); Keefer v. Jones, 467 Pa. 544, 548-49, 359 A.2d 735, 737 (1976); Ward v. Harper, 234 Va. 68, 72, 360 S.E.2d 179, 182 (1987) (finding that use of roadway for seasonal timbering operation was continuous); Pettus v. Keeling, 232 Va. 483, 488, 352 S.E.2d 321, 325 (1987) (holding that periodic logging operations over rural roadway satisfied continuity requirement); see also Bull v. Salsman, 435 So.2d 27, 30 (Al. 1983); Merrill v. Penrod, 109 Idaho 46, 51, 704 P.2d 950, 955 (Ct.App. 1985); Thompson v. Schuh, 286 Or. 201, 211, 593 P.2d 1138, 1144 (1979).
The Law of Easements and Licenses Inland, Jon W. Bruce and James W. Ely, Jr., Chapter 5, Section 5:14, pages 5-41 and 5-42.
"A prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty." (Internal quotation marks omitted.) Schulz v. Syvertsen, 219 Conn. 81, 92-93, 591 A.2d 804. "[W]hen an easement is established by prescription, the common and ordinary use which established the right also limits and qualifies it . . . The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit." (Citations omitted; internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341, 533 A.2d 1202 (1987).
Simonds v. Shaw, 44 Conn.App. 683, 690, 691 (1997).
The cove as shown on Ex. K is what was used by the plaintiffs and therefore that use defines the bounds of the easement with reasonable certainty.
The cove is now part of Lake Pocotopaug; defendant's servient estate will not be heavily burdened inasmuch as his property has direct access to the lake, apart from the cove, and he also will be able to use the cove.
The plaintiff, OCI, is awarded a prescriptive easement over that part of the disputed area as shown on a survey and map entitled PROPERTY OF BRETT STUART, DATE AUGUST 4, 2003, which was drawn by Close, Jensen Miller, P.C., which map is on file in the East Hampton Land Records, described as follows: Beginning at a point where the Brook meets the Cove and continuing in a generally northwesterly meandering line through the Cove, as shown on said map, to the end of said Cove, including all the disputed area which is north of said line. The easement shall include the right to use the area over which the easement is granted, for any activity reasonably related to the use of Lake Pocotopaug, including, but not limited to, swimming, boating, fishing, and placement of docks and rafts of reasonable size.
Richard A. Walsh
Judge Trial Referee