Opinion
LLICV166014094S
07-05-2018
Philip ROSS v. Gaila M. ROSSITER
UNPUBLISHED OPINION
OPINION
John W. Pickard, Judge Trial Referee
The plaintiff, Philip Ross, sued the defendant, Gaila M. Rossiter, to settle the title to structures connected to the plaintiff’s house which are located on the defendant’s property. Specifically, the complaint alleges that a portion of the plaintiff’s residence, a bilco door, and his water well are on the defendant’s land. The plaintiff sets forth the elements of adverse possession and claims that the plaintiff has "acquired sole and exclusive title to that portion of Defendants’ property so occupied by him." The defendant denies the essential allegations of the complaint. This case was tried to the court on March 5 and 15, 2018. The parties have submitted post-trial briefs, the last of which was filed on April 20, 2018.
Motion to Amend
The court must first resolve the plaintiff’s post-trial motion to amend the complaint to conform to the evidence. The defendant has objected. In order to resolve this issue, the procedural history must be reviewed.
In his trial management report, the plaintiff included this statement in his description of the case: "In addition, the Plaintiff has mowed and maintained an area approximately 200 feet from the highway and used it as his lawn, exclusively and without objection by Defendant." (This land will be referred to as the "disputed piece.") The defendant did not object to this statement at the trial management conference. The evidence submitted by both parties at trial primarily focused on the plaintiff’s use of the disputed piece as his lawn and on the defendant’s use of the disputed piece as an access-way. The defendant never objected to this testimony on the ground that it was beyond the allegations of the complaint.
After the completion of the evidence, but before post-trial briefs had been filed, the plaintiff filed a request to amend the complaint to conform to the evidence presented at trial. Specifically, the plaintiff proposed to eliminate the allegation regarding the structures on the disputed piece and to replace it with the following more inclusive statement: "For more than 15 years the Plaintiff has occupied the area to the east of his property belonging to Defendant shown on Plaintiff’s Exhibit 7." Plaintiff’s Exhibit 7 is a map containing an area labeled "Parcel A" of 10,165.7 square feet claimed by the plaintiff. Parcel A is the disputed piece. The plaintiff argues that this amendment should be permitted because both parties presented evidence concerning this area at trial and the amendment better defines the area in dispute. The defendant objects to the amendment on the ground that it is untimely, severely prejudices the defendant, and is essentially a new cause of action.
A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof. Practice Book § 10-62; New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 485-86 (2009). "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." Summitwood Dev., LLC v. Roberts, 130 Conn.App. 792, 799 (2009). In this case, there will be no delay of the trial and there is no prejudice to the defendants. The case was tried by both parties as if the disputed piece included the entire 10,165.7 square feet shown on Exhibit 7 as Parcel A. The parties both offered evidence about this entire area. It is too late in the game for the defendants to object to the proposed amendment on the grounds of prejudice. It is possible that the defendant made the strategic decision to defend the case without objecting to the plaintiff’s evidence which lay beyond the actual confines of the complaint, and to lie in wait until after the evidence had been presented to ambush the plaintiff. There is nothing unethical about this strategy, if this is what happened. But, it undercuts the claim of prejudice. The court will permit the amendment.
Positions of the Parties
The plaintiff’s position is that beginning on the day of his purchase on June 27, 2002 he has used the disputed piece openly as his own land without the permission of the defendants. He further argues that if the defendant has made any use of the disputed piece during that time it was so insignificant that it cannot overcome his possession of the property. Finally, he argues that fifteen years ran on June 27, 2017 and that he is now the record owner of the disputed piece.
The defendant argues that the nature of the plaintiff’s use of the disputed piece was insufficient to establish notice of his hostile claim to the dispute area. The defendant’s position is that she and her family have made regular use of the disputed piece, and, therefore, the plaintiff’s use was never exclusive and did not oust her from possession. Finally, the defendant argues that the plaintiff has failed to establish his claim of 15 years of continuous use under a claim of right by the clear and convincing evidence standard required for adverse possession claims.
Findings of Fact
"It is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony." (Internal quotation marks omitted.) Hoffer v. Swan Lake Assn., Inc., 66 Conn.App. 858, 861 (2001). "[N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony." Masse v. Perez, 139 Conn.App. 794, 798 (2012). "Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude ... [The] fact finder is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." Southhaven Associates, LLC v. McMerlin, LLC, 159 Conn.App. 1, 9 (2015). The court has considered all of the credible evidence and makes the following findings.
The court finds that the plaintiff has proven the following facts by clear and positive proof. On June 27, 2002, the plaintiff, Philip Ross and his wife, purchased a house known as 226 Baker Road (Route 67) in Roxbury, Connecticut. The property description in the deed describes the easterly boundary as running as follows: "thence in a southerly direction along the line of land now or formerly of said Ripley and the line of land now of Meddaugh to the northerly side of Route # 67." The deed recites that the premises are subject to "a right of way to the New York, New Haven and Hartford Railroad Company, which right of way runs along the easterly side of said premises, if it applies." The plaintiff is now the sole owner of the property purchased on June 27, 2002.
At the time of the plaintiff’s purchase, the house was in its present footprint as were bilco doors on the west side of the house. There was no evidence of the date that the house and the bilco doors were constructed. However, they were constructed before the plaintiff’s purchase in June 2002. There was evidence that the well had been drilled by a predecessor-in-title, Robert Dorsey, who sold the property in June of 1990. The defendant and her husband had given Dorsey permission to drill the well on their property. At the time of his purchase, the plaintiff believed that he owned the land upon which the north-east corner of the structure, the bilco doors, and the well were located. Immediately following his purchase, the plaintiff began mowing the grass and raking the leaves on the lawn area to the east of the house. The lawn area is a portion of the disputed piece.
Sometime in the early part of 2003 the plaintiff engaged a surveyor to survey his entire property purchased in June 2002. On or about May 5, 2003, the plaintiff received an A-2 survey of his property which showed that his easterly boundary line was between 42.5 feet and 50 feet closer to his house than he thought, and that he did not own any portion of the land to the east of the house. In fact, the easterly boundary line shown on the survey ran through his bilco doors, cut off the north-east corner of his house, and left his well stranded 27.6 feet onto the neighboring property to the east.
The survey dated May 5, 2003 showed that the area to the east of the plaintiff’s house is part of what was once a railroad right-of-way which the defendant and her husband bought in 1967 as part of an entire farm of more than 40 acres. This right-of-way extends from the northerly side of Route # 67 in a northerly direction to the rear part of the defendant’s farm. The width of the right of way along the road is approximately 120 feet but it narrows progressively as it travels northerly until it reaches a uniform width of approximately 50 feet.
Within a short time after the plaintiff received the survey, he went to see the defendant and her husband to "try to come to an agreement over the property." The parties talked for about 30 minutes but did not reach an agreement. Neither the defendant nor her husband gave the plaintiff permission to continue to use the disputed piece. However, the defendant and her husband gave the plaintiff explicit permission to continue to use the well.
Since the time of his purchase in June 2002, the plaintiff has mowed the grass and has raked the leaves on the lawn portion of the disputed piece next to his house. In June 2002 there was a split rail fence with two rails which ran along the entire frontage of the plaintiff’s property and extended along the southerly side of the disputed piece. Four or five years ago the plaintiff replaced that fence with a board fence with two rails. He did not seek or obtain the defendant’s permission before replacing that fence along the southerly end of the disputed piece.
The plaintiff has placed a portable picnic table and barbecue on the grassed area of the disputed piece and has used them in the warmer months. The plaintiff also cleared underbrush and weeds to the north and west of the lawn and cleaned up and improved a grove of hemlocks at the northerly end of the disputed piece. Unlike the grass mowing and leaf raking on the grassed area, the plaintiff’s use of the areas off of the grassed portion of the disputed piece were extremely sporadic and would not likely have been noticed by anyone. The plaintiff’s testimony and the photographs introduced into evidence convince the court that the grassed area has been carefully cared for by the plaintiff in a way which is clearly different from the balance of the disputed piece. Although the surveys introduced into evidence at the trial do not depict the boundaries of the grassed area of the disputed piece, the testimony of the plaintiff and the photographs of the area enable the court to conclude, by clear and positive proof, that the grassed area consists of only a portion of the disputed piece. It is irregular in shape and does not extend the full width or length of the area claimed by the plaintiff and shown as "Detail Parcel A" on the map marked Plaintiff’s Exhibit 7. The well head for the plaintiff’s water well is outside of the grassed area.
The defendant, her husband and their adult son all testified that they used the former right-of-way to walk cattle to and from the road to the rear portion of the defendant’s property. The defendant and her family were credible witnesses but their recollection of the timing and frequency of the use of the right of way for walking cattle is in doubt. It must have happened extremely infrequently after the plaintiff purchased his house because most of the defendant’s milking cows were removed to Vermont in 1988. There were only a few cattle that remained on the defendant’s land behind the plaintiff’s house. The plaintiff never saw the defendant or her family walking cattle on the right of way or using it for any purpose. The plaintiff never saw any evidence that cattle had been on the right of way. Although the defendant and family estimated that it continued for a period of time after the plaintiff’s purchase, the evidence is insufficient for the court to make a finding that they walked a cow over the grassed area of the right of way after the plaintiff purchased his property in 2002. The defendant and family members also testified that they drove a tractor along the old right of way but the court is unable to find that this took place after the plaintiff’s purchase.
The plaintiff never saw the defendant or her family using the disputed piece for any purpose. Although after he received the survey the plaintiff knew that he did not own or have any claim to the disputed piece, he has cared for and used the lawn area of the disputed piece as if he owned it. Apart from his obvious use of the grassed area, the plaintiff never gave notice to the defendant or her husband that he would be making a claim to the disputed piece. He never placed "No Trespassing" signs to alert the defendant or the public that he claimed exclusive right to the disputed piece. He replaced the existing fence along the road but never erected any other fences.
The plaintiff’s use of the grassed area would characterize an owner’s use. It was of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question. The extent of the plaintiff’s care and use of the grassed area was so obviously different from the balance of the land in the right of way that a reasonable owner of the land would have believed that the plaintiff was using the grassed area as his own.
The defendant never placed "No Trespassing" signs to alert the plaintiff that she claimed exclusive right to the grassed area of the disputed piece. There is no evidence that the defendant has ever given the plaintiff a written notice to dispute the plaintiff’s possession of any part of the disputed piece pursuant to General Statutes 52-575. The defendant filed a written answer to the complaint in this case denying the plaintiff’s adverse possession claim but there is no evidence that it was served and recorded as required by § 52-575, § 47-39 and § 47-40.
For a two-day period in 2014 the defendant permitted a surveying crew to use the right of way to gain access to the rear of the defendant’s property for the purpose of mapping the location of a cell phone tower to be placed in the rear of the farm. There is no evidence that this included walking on the grassed area. The map produced by the crew shows that the surveying activity took place in the area of the tower cite, not on the right of way. On September 2, 2014 the defendant signed a lease with the cell tower company, New Cingular Wireless PCS, LLC, leasing her property, including the disputed piece. A notice of lease with attached map was recorded on the Roxbury land records on October 28, 2014. The lease and attached map show that access to the cell tower will be by way of a 12’ wide road over the old railroad right of way, including the disputed piece, with overhead utilities running along the side of the road.
The defendant is now the sole owner of the disputed piece. During "the last couple of years" the plaintiff has "been working hard to try to make a purchase [of the disputed piece] and clear this up."
Law of Adverse Possession
General Statutes § 52-575(a) establishes a fifteen-year statute of repose on an action to oust an adverse possessor. "The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner." Brander v. Stoddard, 173 Conn.App. 730, 744 (2017).
General Statutes Sec. 52-575(a) provides, in pertinent part: "No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen next after such person or persons have been ousted from possession of such land or tenements ..."
"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. 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. Thus, the claimant’s possession need only be a type of possession which would characterize an owner’s use. It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question." (Citations omitted; internal quotation marks omitted.) Anderson v. Poirier, 121 Conn.App. 748, 753-54 (2010).
"It is true, as we have stated above, that it is not essential to the establishment of title by adverse user that a claim of ownership be made; title may be acquired even though the possessor knows that he is occupying wholly without right; all that is necessary to prove is that there was a user as of right, that is, one in disregard of any rights of the holder of the legal title." Horowitz v. F.E. Spencer Co., 132 Conn. 373, 378 (1945). "Hostile occupancy implies lack of consent ... As a general proposition, to satisfy the hostility requirement of adverse possession, a claimant’s possession of the disputed land, from its inception, must be without permission, license or consent of the owner and must continue to be so throughout the required fifteen-year period." (Quotation marks omitted; citation omitted.) Bennett v. Bowditch, 163 Conn.App. 750, 757 (2016).
"A finding of [a]dverse possession is not made out by inference, but by clear and positive proof ... [C]lear and positive 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 the 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 ... The burden of proof is on the party claiming adverse possession ..." Bennett v. Bowditch, 163 Conn.App. 750, 755 (2016).
Discussion
The facts of this case present the court with what has sometimes been termed a "hard case." It is hard because the application of the established law does not permit the court to enter a judgment which is in accordance with what it believes to be an ideal solution. Here, both parties have real interests at stake in the case and present good reasons for the positions they have taken. An ideal resolution of this case would satisfy the real interests of both parties. The court believes that this could be accomplished. But, it can only be accomplished by voluntary agreement of the parties- the court is unable to accomplish it under established law. The court has given the parties ample opportunity to try to craft their own resolution without being involved in those discussions. The attorneys have reported that they cannot reach an agreement. Therefore, the court takes to heart the admonition that "hard cases make bad law," Wasko v. Manella, 74 Conn.App. 32, 44 (Peters dissenting) (2002), and will decide the case in accordance with established law. In summary, the court will find that the plaintiff has established several of the essential elements of adverse possession but is unable to overcome the statute of limitations hurdle: that the adverse use must be continuous for fifteen years.
The court finds by clear and convincing evidence that the plaintiff has established that he has used the grassed area of the disputed piece as part of his lawn ever since he purchased his house. The defendant presented no evidence to dispute the plaintiff’s claim that he has mowed the grass and raked the leaves on the grassed area, and used it for normal recreational uses as a part of his yard continuously since the day he purchased his house on July 27, 2002. This use would have been clear and obvious to the defendant, her husband and son.
The plaintiff’s use of the grassed area of the disputed piece was open, visible and exclusive. If the defendant or her family used the right of way for any purpose after the plaintiff’s purchase, it was infrequent and sporadic and did not involve use of the grassed area. Infrequent, sporadic use by the owner does not necessarily interrupt the adverse possessor’s claim of exclusivity. Sanford v. Dines, 3 Conn.App. 639, 642 (1985), citing Roche v. Fairfield, 186 Conn. 490, 502-03 (1982).
The plaintiff’s use of the grassed area of the disputed piece was without the license or consent of the defendant or her husband. The defendant did nothing to prevent the plaintiff from using the grassed area as a part of his yard. She did not take advantage of the statutory procedure to dispute the plaintiff’s right of possession. The same cannot be said for the water well. The well is not on the grassed area. The defendant and her husband gave the plaintiff explicit permission to continue to use the well. Therefore, the plaintiff cannot acquire the right to use the well by adverse possession.
The problem for the plaintiff is the fifteen-year period. The defendant presents two reasons for her argument that the plaintiff can not use the time from the date of his purchase until the date he received his survey as part of the fifteen-year statutory period. The first reason is invalid but the second reason controls the outcome of the case. The defendant’s first reason is because the plaintiff thought he owned the disputed piece during the time between his purchase and the date he received the survey. The defendant argues, without legal citation, that the plaintiff could not make an adverse possession claim until he knew that a portion of his property was on his neighbor’s property. In fact, a mistaken belief by the adverse possessor that he owned the disputed property when he entered into possession is immaterial to an action for adverse possession. Paletsky v. Paletsky, 3 Conn.App. 587, 588-89 (1985). So, the plaintiff’s statutory period began on June 27, 2002 when he purchased his property and began exclusive possession of the grassed area of the disputed piece.
In a footnote to her brief, the defendant makes passing reference to "tacking" the use of the plaintiff’s predecessor in title to his own. However, the court will not consider this issue because there was no evidence of how long the predecessor had used in the same manner as the plaintiff. The court would be unable to determine the length of time or the period to be tacked.
The defendant’s second reason is that the effect of the 2003 meeting between the parties was to stop the running of the 15-year period when he "recognized his neighbor’s superior title to the disputed area of the right of way" and tried to settle the matter with the defendant. This reason is in accord with the law. "An adverse possessor may interrupt his or her continuous possession by acting in a way that acknowledges the superiority of the real owner’s title. The possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other ... Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required fifteen years challenge the right of the true owner, in order to found title by adverse use upon it ... Such acknowledgment of the owners’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew." (Citations omitted.) Brander v. Stoddard, 173 Conn.App. 730 (2017). "An offer to purchase the legal title, or an acceptance of a conveyance of title, as distinguished from a mere outstanding claim or interest, is a recognition of that title. Although efforts to obtain deeds from other claimants to the property do not disprove the hostile character of a possession, efforts to buy the property from the record owner constitute an acknowledgment of the record owner’s superior title, and thus disprove the adverse holding, because there has been no claim of right." Provenzano v. Provenzano, 88 Conn.App. 217, 224 (2005).
Here, the plaintiff received the survey which showed that the defendant, not he, owned the disputed piece. There was no evidence that he disputed the accuracy of the survey. Instead, he went to see the defendant and her husband to "try to come to an agreement over the property." There was no evidence as to details of the discussion but there can be no doubt that the plaintiff’s approach to the defendant was based upon the results of the survey and was an acknowledgment of the superiority of the defendant’s title. This effort was unsuccessful except for explicit permission to continue to use the well. But, it interrupts the plaintiff’s hostile possession of the grassed area of the disputed piece. This is significant because it means that the fifteen-year statutory period could not have run at the time this case was tried. Even if the 2003 meeting did not interrupt the plaintiff’s hostile possession, the plaintiff’s explicit attempts to purchase the disputed piece "within the last couple of years" would have had the same effect.
Following the meeting with the defendant and her husband, the plaintiff immediately resumed hostile possession of the grassed area and a new 15-year period began. Although the evidence did not provide an exact date for the meeting between the parties, it was a short time after the plaintiff received the map dated May 5, 2003. The complaint in this case was served on August 17, 2016 and an answer was filed on June 26, 2017 denying adverse possession. The defendant argues that the filing of the answer stopped the running of the fifteen-year period but the court does not need to make this decision. Even if the adverse possession continued to run while this case was pending, the fifteen-year period had not run when the trial took place on March 5 and March 15, 2018 when evidence closed. Evidence closed at that time. The court must decide the case on the evidence presented at trial. Based on that evidence, the fifteen-year statutory period began sometime after May 5, 2003 and could not have expired at the time this case was tried.
Conclusion
Judgment shall enter in favor of the defendant, Gaila M. Rossiter.