Opinion
No. CV05-4006713-S
October 30, 2009
MEMORANDUM OF DECISION
FACTUAL AND PROCEDURAL BACKGROUND:
The parties agreed at trial (on September 15, 2009) to a statement of Stipulated Facts (Plaintiff's Exhibit #30), a copy of which is attached hereto (The original exhibit remains with the file.). To those facts, the court adds only that, on June 5, 2006, Agati, J., granted the plaintiff's motion to substitute as party plaintiff E M Custom Homes, LLC. The prior named plaintiff, Monika Thomas, is the former owner of the subject property and the substituted plaintiff is now the record owner of the property which abuts the Collins and Johnson properties as shown on Exhibit #6. The plaintiff's property is known as "Whispering Knolls."
The court assumes that the reference to "Francis M. McWeeney, Jr.," in Fact #17 is in error and should be a reference to "Francis M. McWeeney, III" and that " Laurie A. McWeeney" referenced in Fact #15 is the same person referred to as "Lori A. McWeeney" in Facts #16, #17, #19, #21, and #22.
The plaintiff's Revised Complaint (dated June 17, 2009) consists of four (4) counts. Count One seeks to quiet title in the plaintiff to that portion of the property located at 660 Bucks Hill Rd. (conveyed to "Collins") containing a shed and chain link fence which in fact encroaches 12.8 ft. onto the plaintiff's property. The plaintiff's claim is that neither Collins nor her predecessors in title have used the land continuously for fifteen (15) years so as to acquire title by adverse possession. Plaintiff's Post-Trial Brief, at 4.
This claim may be inconsistent with Facts #22 and #23; it is not, however, dispositive of the issues before the court.
Count Two asserts the same claim against defendants Johnson and seeks to quiet title in the plaintiff to that portion of the Johnson driveway which encroaches 14 ft. onto plaintiff's property.
Count Three states a cause of action in ejectment as against Collins with reference to the disputed portion of the property as above described.
Count Four seeks to eject the Johnsons from that disputed portion of their driveway which encroaches upon the plaintiff's property.
The defendants, in their Answer, Special Defenses, and Counterclaims (dated July 6, 2009), have denied the plaintiff has ever had possession of the two (2) disputed strips and they have denied all of the remaining substantive allegations of the plaintiff (i.e., title in the plaintiff).
Collins has pled title by adverse possession and she avers that the plaintiff's claims against her are barred by the internal Statute of Limitations of C.G.S. § 52-575, that the conveyance to plaintiff of the disputed property is void under § 47-21, and that she has equitable title because the plaintiff purchased with actual knowledge of the encroachment.
The Johnsons have pled the conveyance to plaintiff of the disputed property strip is void pursuant to C.G.S. § 47-21 and that there is equitable title in them because plaintiff purchased with actual knowledge of the encroachment at a portion of their driveway on the property conveyed to plaintiff.
The defendant Collins asserts four (4) counterclaims: 1) adverse possession under C.G.S. § 52-575; 2) right of way by prescription; 3) easement by implication; and 4) equitable title given plaintiff's purchase with actual knowledge of the encroachment. The defendants Robinson have pled three (3) counterclaims: 1) express easement; 2) implied easement; and 3) equitable title in them by virtue of plaintiff's actual knowledge at purchase that a portion of the Johnsons' driveway encroached onto its property.
The defendants have moved to dismiss plaintiff's action for failure to make out a prima facie case of an interest sufficient to maintain the action pursuant both to §§ 47-21 and 47-31; they maintain that only the plaintiff's grantor has the right to maintain actions under C.G.S. § 47-31 for ejectment, and that there is no evidence to maintain an ejectment action.
This argument is duplicative and the court does not specifically address it for that reason.
Before the court is the defendants' Motion to Dismiss with supporting memorandum. Post-trial, both parties have filed briefs with attachments and address the merits of the Special Defenses and counterclaims. The court here adjudicates all issues pertinent to a global resolution.
APPLICATION OF LAW TO FACTS
There is no dispute that the plaintiff has record title to the disputed strips. Morever, all parties (and their predecessors in title) derived title from the McWeeney family since, at one time, Francis M. McWeeney, Jr. owned the entire tract of land now being sub-divided for homes. Edmund Thomas, a "Member" of E M together with his wife (Monika Thomas, the originally named plaintiff), testified that, when both he and his predecessor in title ("Whispering Knolls") purchased the entirety of the tract (exclusive of the Collins and Johnson parcels already conveyed), they knew of the encroachment consisting of a strip alongside the Johnson driveway and the fence and shed on the Collins property. Collins took from Francis M. McWeeney, III and his wife on December 31, 2001 (Fact #19) and the Johnsons took from McWeeney, Jr. on June 13, 1995 (Fact #7). Thomas went on to say that neither he nor his predecessor in title had ever had "physical possession of either of the disputed strips and that he wanted the Johnsons to remove their driveway and Collins to remove the chain link fence and shed. When asked why he brought this action, his response was that he couldn't "see anybody buying with the shed so close" (and presumably with a strip of the Johnson driveway encroaching upon the property being conveyed). That of course flies in the face of both Whispering Knolls and E M having purchased with such knowledge (Whispering Knolls on September 5, 2003 [Exh. #10] and Monika Thomas as a member of E M on October 5, 2004 [Exh. #11]). An honest witness, Mr. Thomas' testimony was very short and he was not cross-examined.
Despite having so testified, he stated he "thought" he had "possession" of the disputed strips based on some real estate knowledge he had. (His testimony was no more specific than that.) The court can only assure Mr. Thomas believed he had "possession" by virtue of record title.
Ms. Collins was conveyed the property at 660 Bucks Hill Road on December 31, 2001 — to include the shed and chain link fence which were constructed by the prior owners, Francis M. McWeeney, III and Laurie McWeeney (McWeeney testified he built the shed and put up the fence sometime between 1991 and 1993 after his father [McWeeney, Jr.] had confirmed for him the land on which the fence and shed were to be built was his.). McWeeney, III and his wife acquired the property on April 12, 1990, from his father [Exh. 7]. While the McWeeneys, III owned the property (Lot 2 on Exh. #6), they paid the property taxes on the shed and fence; during the entire period of Ms. Collins' ownership, she paid the property taxes on the shed and chain link fence. Collins' testimony was that she was told by McWeeney, III the boundary line for her property was beyond the shed (to the rear of which was the fence) which she has used continuously to store her lawn mower, other lawn furniture, fireplace accessories, etc. She also testified she used the disputed area to access areas of her property not in dispute — specifically, she uses the gate in the chain link fence to get to unchallenged areas of her property. Mrs. Collins was entirely credible.
Rev. Roland Johnson and his wife were conveyed the property at 644 Bucks Hill Road on June 13, 1995, by McWeeney, Jr. (McWeeney, III's now deceased father). Exh. #9. It contains a two-car garage with a large driveway (Exh. #15), fourteen (14) feet of which constitutes the "disputed strip" on their property. When the couple purchased the property, Johnson was told by his grantor (who then owned the entirety of what is now a subdivision) that the plan was to build a golf course to the rear of their property and a road shown as "Joffran Drive" (See e.g., Exh. #3.) which would have, had it been constructed, permitted the Johnsons two (2) ways to access their garages from Bucks Hill Road. Neither the golf course nor Joffran Drive was ever built; thus, there remains only one (1) way to access the garages from Bucks Hill Road. While McWeeney, Jr. was alive, nobody other than the Johnsons used the driveway; in fact, after McWeeney, Jr.'s death, when Whispering Knolls (plaintiff's predecessor in title) purchased the remainder of the McWeeney property, the property was sub-divided as shown on Exh. #6. Rev. Johnson testified that, if unable to continue to use the disputed fourteen feet (14') of his driveway, he would not have use of one of the garages for which the parties agree the couple has paid the property taxes since their purchase and that rerouting of the driveway would not only destroy a portion of one of the garages but would cost thousands of dollars which they don't have. Mrs. Johnson's testimony was duplicative of that of her husband. The court found both Mr. and Mrs. Johnson credible.
Johnson spoke always of a "garage" (as opposed to "garages"); yet, Exh. #14 clearly shows two (2) garages at 644 Bucks Hill Road.
Francis McWeeney, III, testified he and his wife Lori were conveyed the property (later conveyed to Collins) on December 31, 2001 and that they were granted permission by his father (McWeeney, Jr.) to build the shed and chain link fence (which he did sometime between 1991 and 1993). McWeeney, III lived continuously on the property until the sale to Collins. After his father died, McWeeney, III, on behalf of his father's estate, conveyed to Whispering Knolls, LLC, all of the seventeen (17) acres (shown on Exh. #6) his father had once owned (except for the Collins and Johnson parcels already conveyed). He noted the Johnson driveway had by then already been paved. When the Estate conveyed to Whispering Knolls, McWeeney, III, knew of no encroachment by either defendant on the property conveyed (and later again conveyed to E M); he learned of the same from Collins, who had been told that by "a developer." McWeeney, III confirmed Collins' testimony that he had told her the shed and chain link fence were on the property being conveyed to her.
E M has at no time had other than record title to the two (2) disputed strips. "A mere paper chain of title does not establish ownership in one unless his possession or that of his predecessors in title is shown, though title satisfactorily established may draw with it possession in the absence of any evidence to the contrary." Loewenberg v. Wallace, 147 Conn. 689, 694 (1960). In the instant case, Collins has had actual possession of and has used the disputed strip containing the shed and chain link fence since December 13, 2001; her predecessor in title (McWeeney, III) had actual possession of the disputed strip since April of 1990 and he had used both the shed and the fence since sometime between 1991 and 1993. E M cannot — nor did it in fact ever assert — possession of the 12' 8" strip on which the shed and fence are located. There is more than sufficient evidence showing possession by Collins and there is no evidence of possession by E M or any of its predecessors in title. Mere record title is insufficient to establish ownership of this disputed strip in the plaintiff. Similarly neither E M nor its predecessor in title has ever had actual possession of the 14 ft. disputed strip of the Johnson driveway. The Johnsons have had actual possession since June of 1995 and have made daily use of the disputed strip as it is their only access to and from Bucks Hill Road. On cross-examination, Edmund Thomas admitted that neither E M nor its predecessor in title, Whispering Knolls, LLC, ever had physical possession of either of the disputed strips, that E M had never been on or used either of the disputed strips, and that, when he obtained a quitclaim deed from Monika Thomas in September of 2005 (Exh. #12) and when Whispering Knolls purchased from McWeeney, III (as Executor of Estate of McWeeney, Jr.) in September of 2003 (Exh. #10), they both knew of the encroachments by defendants. Yet, although notice by Monika Thomas (as then "owner" of the disputed strips) of adverse possession directed to both defendants were received for record by the Waterbury Town Clerk's Office on July 8, 2005, both Rev. Johnson and Collins testified no such notice had ever been served upon them and no evidence of such service was ever adduced at trial nor part of the court file.
The court recalls no evidence with regard to when McWeeney, Jr., (the Robinsons' predecessor in title) originally purchased the tract of land nor was there any evidence he took actual possession of any portion of it.
One cannot create a title in himself merely by proof of a set of deeds purporting to constitute a chain of title ending with conveyance to himself. Loewenberg, supra, at 696. The plaintiff having failed to prove neither it nor its predecessors in title have at any time been in possession of the disputed strips, it has failed to prove any interest whatsoever in either disputed strip. In a controversy under § 47-31 over the title to or an interest in real estate (the plaintiff's claim here), "a party can prevail, that is, can obtain an adjudication of title or an interest in himself, if at all, only on the strength of his own title or interest as distinguished from the weakness of the title or interest of his adversaries. This is true as to a plaintiff, both as to proof of an interest in the property sufficient to entitle him to maintain the action and as to proof of the facts necessary for him to obtain an affirmative adjudication of title or an interest in himself." Id., at 698-99. (Citations omitted.) "That is also true as to a defendant, if he is to obtain an affirmative adjudication of any title or interest in himself." Id., at 499. (Citations omitted.)
The court finds the plaintiff has not a sufficient interest in either of the disputed strips to maintain this action for clear title as to either defendant. The plaintiff, at the conclusion of trial, urged the court to find not only that it has clear title (based on record title) but that it also can maintain an action for ejectment of the defendants (as asserted in Counts Three and Four of the Revised Complaint) under 1525 Highland Associates, LW v. Fohl, 62 Conn.App. 612 (2001). While the facts and the relief sought in 1525 Highland differ from the instant case, there is dicta that asserts that a plaintiff (with record title to a parcel of property) is "legally entitled to bring an action to recover possession" of that portion of the parcel encroached upon by the defendant abutting owner. Id., at 619. The defendants urge the court to adopt the finding of the court in Loewenberg, supra, and they take the position these two (2) cases are irreconcilable. They are not irreconcilable. Loewenberg notes C.G.S. § 47-31 (argued here) provides that anyone claiming title to, or any interest in, property may bring an action provided the complaint sets forth that party's title or interest and the manner in which the plaintiff acquired it. 147 Conn., at 692. It goes on, however, to state, "A plaintiff's proof of an interest necessary to enable him to maintain an action under the statute (§ 47-31) is technically distinct from his proof of the facts necessary to entitle him to an affirmative adjudication in his favor." (Emphasis added.) Id. at 693. It set aside the trial court's judgment for the plaintiffs based solely upon the plaintiff's showing of record title because the plaintiff's grantor had been ousted of possession (under § 47-21) at the time of delivery of a warranty deed to the plaintiffs. Put more simply, the plaintiffs there could, under § 47-31, bring an action but record title by virtue of a deed from a grantor already ousted could not convey to the grantee — plaintiff's possession or title greater than the grantor had to give at conveyance. In the instant case, record title alone cannot give to the plaintiff possession or ownership of the strips the defendants possessed and which E M never possessed when E M purchased with knowledge of the encroachments and the defendants' possession of the same yet remained silent until commencing this action.
Just as the plaintiff cannot establish clear title, its claims for ejectment are equally unpersuasive. As the plaintiffs (and their predecessors in title) in 1525 Highland Associates, supra, had not possession of the property to convey to the defendant because already ousted of possession under § 47-21 and just as the plaintiff in Loewenberg, supra, had not possession to convey to the defendant, so too is the title of this plaintiff to the disputed strips vitiated by the existing facts and circumstances when E M was conveyed the remaining parcel of land. E M cannot prevail on Counts II and IV so as to eject from such strips the defendants in actual possession under all of these known facts.
The defendants (Collins and Johnson) have asserted seven (7) counterclaims; both Collins and the Johnsons claim an easement of implication (Third Count of Collins' Counterclaims and Second Count of the Johnsons' Counterclaims). Disposition of these counterclaims obviates the need to adjudicate the remaining counterclaims.
An implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property . . . In the absence of common ownership . . . an easement by implication may arise based on the actions of adjoining property owners . . . There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate. (Citations omitted.) O'Brien v. Coburn, 39 Conn.App. 143, 148 (1995).
In the absence of common ownership, an easement by implication may arise based on the actions of adjoining property owners. 2 R. Thompson, Real Property § 352, p. 304. In evaluating the reasonably necessary factor for an easement by implication, our Appellate Court has said, "[I]t is sufficient if the easement is highly convenient and beneficial for the enjoyment of the dominant estate." Sanders v. Dias, 108 Conn.App. 283, 294 (2008). The defendants have clearly pled the elements of an easement by implication in averring that, in Collins' case, McWeeney, III and his wife conveyed the portion of the property containing the chain link fence and shed (which Mcweeney, III and his wife had constructed) to Collins and that Collins has since then possessed the property in a manner which is "open, notorious, visible, adverse, hostile, exclusive, under claim of right, continuous and uninterrupted to the date hereof." First Special Defense to Counts One and Three incorporated in Third Count of Collins' Counterclaim. The Counterclaim adds that Collins' predecessors (McWeeney, Jr. and McWeeney, III and wife) "intended that the property upon which said shed and fence were located were appurtenant to and a permanent part of 660 Bucks Hill Road," that "[t]he easement over the part of Lot #2 upon which said shed and fence are located is reasonably necessary for the use and normal enjoyment of the premises . . .," and that the premises at 660 Bucks Hill Road "has an easement by implication over the part of Lot #2 upon which said shed and fence are located." ¶¶ 14-16. The Second Special Defense to Counts Two and Four (applicable to the Johnsons) pleads the intention of McWeeney, Jr. to convey the entire driveway — including that part located on Lot #1 — in the deed of conveyance (¶ 11) and the Second Count of the Counterclaim of Defendants Johnson asserts the driveway was in use and an obvious servitude on Lot #1 in favor of 644 Bucks Hill Road (the Johnson residence), that the Johnsons have had exclusive use of that part of their driveway since June 13, 1995, that the part of the driveway located on Lot #1 is reasonably necessary for the fair enjoyment of the premises, and that the Johnsons have "by implication of law, a grant or reservation of right to continue such exclusive use" of that part of the driveway. ¶¶ 11-14.
The deeds to Collins and the Johnsons each convey a parcel of land "with all the improvements thereon." Exh. 8, Schedule A, ¶ 1; Exh. 9, ¶ 2. The term "improvement" has been defined as "[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes." Black's Law Dictionary, Revised Fourth Edition, p. 890.
The intent of the defendants' grantors (McWeeney, Jr. and McWeeney, III and his wife) in conveying the properties at 660 Bucks Hill Road to Collins and 644 Bucks Hill Road to the Johnsons vis-a-vis the disputed strips is clear. McWeeney, III (Collins' grantor), testified that, during his ownership, he asked his father ("Jr.") if he ("III") could build the shed and the chain link fence and whether the location of the fence and shed was on his (III's) property (as opposed to being part of another parcel owned by McWeeney, Jr.). His father responded affirmatively and McWeeney, III built the shed (which he used to house lawn equipment and the like) and had the fence installed. Believing them to be on his property, McWeeney, III paid taxes on the shed and fence while he lived there. McWeeney, III, testified he told Collins the shed and fence were on the property he was conveying and she has paid the taxes on them since then. Collins' testimony made clear she makes year-round use of the shed for storage and uses the gate in the chain link fence to gain access to other undisputed areas of her property. (This testimony was never challenged or refuted.) McWeeney, III and Collins' testimony were entirely credible.
The Stipulated Facts are not consistently accurate statements. See e.g., Stipulated Fact #17 in which the parties have agreed McWeeney, Jr. and "Lori" A. McWeeney constructed the shed and fence on what is now the property whereon Collins resides when in fact the evidence is that McWeeney, III and his wife did so. See, however, Defendants' Post-Trial Brief, at p. 6.
Rev. Johnson testified that, when he purchased from McWeeney, Jr. in June of 1995, the driveway at 644 Bucks Hill Road had already been paved. It serves as the apron of a two-car garage and he described the couple's use of it as continuous. He testified he would be unable to use one of the two garages if he were required either to remove it (at significant cost) or were denied the use of the disputed 14' strip. The court found him to be a credible witness.
Neither the plaintiff nor any of its predecessors in title have ever made use of either of the disputed strips though they have had actual knowledge of the encroachments for years. Also relevant is that the immediate area to the rear of the shed and fence on the Collins property has been built up; the ground has been elevated, trees and shrubbery have been cleared, and new homes have been built. (Contrast Exhs. 13 and 14.) It is not known whether that was done by Whispering Knolls or E M, but both had actual knowledge of the encroachment; yet, whichever developer it was chose not to challenge it then but to locate the clearing, the elevation of the earth, and the construction of new homes to the rear of both the shed and fence and, by so doing, acquiesced to Collins' possession of that land on which the shed and fence are located.
In Gemmell v. Lee, 59 Conn.App. 572 (2000), our Appellate Court affirmed the trial court's finding of an implied easement, noting there was evidence below that the property owner (and possessor) had made use of the right-of-way for access to the rear portion of the property and that it was also accessed by use of pick-up truck to garden in that rear portion. Id. at 577. Likewise, in Sanders v. Dias, 108 Conn.App. 283 (2008), the Court accepted the trial court's finding that testimony of the cost of relocating a driveway (as Rev. Johnson so testified) was credible and that the trial judge was the sole arbiter of the credibility of witnesses. Id., at 294. The Court affirmed the trial court's judgment for the defendants on the plaintiff's complaint (finding an easement by implication).
There was also testimony in Sanders regarding the risk of blasting near the residence and safety issues associated with the construction of a steep driveway. Id. at 294-95.
The scope of the easement by implication referable to the Collins' parcel, which easement is for the use and maintenance of the shed, fence, and the enclosed area servicing the property now or formerly of Martha R. Collins is identified as Lot 2 on the map recorded in the Office of the Waterbury Town Clerk entitled "Resubdivision Map" — "Whispering Knolls," Assessor's Map 17, Block 257, Lot 2, Bucks Hill Road Grassy Hill Road, Waterbury, Connecticut . . . dated May 3, 2004, revised through 7/16/04 and prepared by Land Engineering Associates, Inc. (See Exh. 6.) . . . being bounded and described as contained in Paragraphs Two-Seven (2-7) of Stipulated Full Exhibit #27 dated 9/15/09 and attached hereto and made part of this judgment.
Editor's Note: The referenced exhibit has not been reproduced herein.
The scope of the easement by implication referable to the Johnson parcel, which easement is for the use and maintenance of the driveway servicing the property now or formerly of Roland and Melba C. Johnson is identified as Lot 1 on the map recorded in the Office of the Waterbury Town Clerk entitled "Resubdivision Map" — "Whispering Knolls," Assessor's Map 17, Block 257, Lot 1, Bucks Hill Road Grassy Hill Road, Waterbury, Connecticut . . . dated May 3, 2004, revised through 7/16/04, prepared by Land Engineering Associates, Inc. (See Exh. 6.) . . . being bounded and described as contained in Paragraphs Two-Eight (2-8) of Stipulated Full Exhibit #28 dated 9/15/09 and attached hereto and made part of this judgment.
The court does not find persuasive Jackson v. Lee, D.N. FST CV06 — 50026929S (J.D. of Stmfd — Norwalk, at Stmfd., 5/19/09). Having cited to the same law on easements by implication as here recited, the court there declined to find a right-of-way over the defendant's property because that plaintiff had "not presented any evidence showing disproportionate expense in relocating the right-of-way or inconvenience or lack of a reasonable and suitable alternative." As earlier herein stated, there was evidence from Rev. Johnson of significant expense (in relocating the Johnson driveway), use of the disputed strips for access to the defendants' properties for years, and knowledge of the encroachments by both the plaintiff and its predecessor in title at purchase and in the intervening years while not confronting either defendant until suit was brought. The plaintiff here provides no analysis of Jackson, supra, and cites it once without explication in its Trial Brief of September 25, 2009.
In their Post-Trial Brief, the defendants urge the court to exercise her equitable power and to reform their deeds on the basis of mutual mistake. They have specifically sought equitable relief in the Counterclaims' Prayer for Relief. "An action for reformation rests on the equitable principle that the instrument sought to be reformed does not express the intention of the parties because it was executed as the result of mutual mistake or unilateral mistake coupled with fraud or inequitable conduct on the part of the other party." Hilb Regal Hobbs Co. v. Randall, 115 Conn.App. 89, 98 (2009). Reformation is granted "to restate the intended terms of an agreement when the writing that memorializes the agreement is at variance with the intent of both parties." Blow v. Konetchy, 107 Conn.App. 777, 792 (2008). The plaintiff here asserts the claim of mutual mistake fails "because none of the parties knew there would be encroachments . . ." The mutual mistake is in fact that neither McWeeney, Jr. nor his grantee (the Johnsons) nor McWeeney, III and his grantee (Collins) knew of the encroachments when the deeds were conveyed. The court, however, declines to reform the deeds — both because neither of the grantors is before the court and because the relief sought by the defendants is afforded by the granting of easements by implication, specifically described in Exhibits 27 and 28, and herein stated with particularity.
This court has no jurisdiction over persons who have not been made parties to the action before it. See Graham v. Zimmerman, 181 Conn. 367, 373 (1980). The resolution of this dispute binds only the parties to this action. Furthermore, a recording of the easements by implication as here recited affords adequate protection to the defendants and subsequent purchasers of their properties.
ADJUDICATION
Judgment is for the defendants on the plaintiff's complaint (the plaintiff having failed to make out a prima facie case), for the defendant Collins on the Third Count of her Counterclaim, and for the defendants Johnson on the Second Count of their Counterclaim.
Plaintiff's EXHIBIT 30 STIPULATED FACTS
The parties stipulate to the following facts:
1. At all relevant times prior to April 16, 1990, Francis M. McWeeney, Jr. owned a tract of land located on Bucks Hill Road and Grassy Hill Road in Waterbury, now known as "Whispering Knolls' subdivision. See Exhibit 6. The tract of land included four lots which are at issue in the instant action. The four lots at issue are depicted on Exhibit 6 as follows: "N/F/ Martha R. Collins," "N/F Roland Melba G. Johnson," "Lot 1" and "Lot 2."
2. In 1991, Francis M. McWeeney, Jr. constructed a residential dwelling and driveway on the lot depicted "N/F Roland Melba G. Johnson." That lot is also known as 644 Bucks Hill Road. The driveway was situated in part approximately 14 feet onto the adjacent Lot 1, Exhibit 6.
3. At all times on and after July 10, 1991, Francis M. McWeeney, Jr. intended to build a road over Lot 1, Exhibit 6, to be known as Joffran Drive. See Exhibit 3.
4. At all times on and after July 10, 1991, Francis M. McWeeney, Jr. intended that the garage at 644 Bucks Hill Road be accessible from Joffran Drive.
5. At all times between July 10, 2001, and the date hereof, the driveway described in Exhibit 28 has been the only access from Bucks Hill Road to and from the garage at 644 Bucks Hill Road.
6. In the spring, 1995, the defendants Johnson negotiated with Francis M. McWeeney, Jr. to purchase the property at 644 Bucks Hill Road. During the negotiations Francis M. McWeeney, Jr. told the Johnsons that if they purchased 644 Bucks Hill Road they would have access to the garage on the premises over the existing driveway, described in Exhibit 28, as well as over Joffran Drive, when it was built.
7. On June 13, 1995, Francis M. McWeeney, Jr. conveyed 644 Bucks Hill Road to the Johnsons together with appurtenances, including the part of the driveway described in Exhibit 28, located on Lot 1, Exhibit 6.
8. At all times on and after June 13, 1995, Francis M. McWeeney, Jr. acquiesced in the Johnson's exclusive use of the part of the driveway described in Exhibit 28, located on Lot 1, Exhibit 6.
9. After Francis M. McWeeney, Jr. sold 644 Bucks Hill Road to the Johnsons he died.
10. In September 2003, Francis M. McWeeney, Jr.'s Estate sold Lot 1 and Lot 2 to Whispering Knolls Development, LLC.
11. At the time Whispering Knolls Development, LLC purchased Lot 1 it knew of the encroachment by the driveway depicted on Exhibit 6.
12. At the time Whispering Knolls Development, LLC purchased Lot 2 it knew of the encroachment by the shed and fence depicted on Exhibit 6.
13. Lot 1 is an approved building lot within the Whispering Knolls subdivision notwithstanding the driveway depicted on Exhibit 6.
14. Lot 2 is an approved building lot within Whispering Knolls subdivision notwithstanding the shed and fence depicted on Exhibit 6.
15. On or about April 16, 1990, Francis M. McWeeney, Jr. conveyed the lot known as 660 Bucks Hill Road and depicted as "N/F Martha R. Collins," Exhibit 6, to his son, Francis M. McWeeney, III and Laurie A. McWeeney.
16. On or about March 1, 1993, Francis M. McWeeney, Jr. stated to Francis M. McWeeney, III, that the property described in Exhibit 27 was part of the property conveyed by him to Francis M. McWeeney, III and Lori A. McWeeney by deed marked Exhibit 7.
17. On or about March 1, 1993, Francis M. McWeeney, Jr. and Lori A. McWeeney constructed a shed and chain link fence on the property described in Exhibit 27.
18. Francis M. Mcweeney, III and Lori A. McWeeney paid the property taxes on the shed and chain link fence on the property described in Exhibit 27 during the entire time they owned 660 Bucks Hill Road.
19. On December 31, 2001, Francis M. McWeeney, III and Lori A. McWeeney conveyed 660 Bucks Hill Road to the defendant, Martha Collins. Included in the sale were the shed and chain link fence.
20. The defendant Collins has paid the property taxes on the shed and chain link fence on the property described in Exhibit 27 during the entire time she has owned 660 Bucks Hill Road.
21. At all times on and after March 1, 1993, Francis M. McWeeney, Jr. acquiesced in the exclusive use and development of the property described in Exhibit 27 by Francis M. McWeeney, III and Lori McWeeney.
22. The possession by Francis M. McWeeney, III and Lori A. McWeeney are tacked onto the possession by the defendant Collins so that the period of adverse possession of the property described in Exhibit 27 began March 1, 1993, and continues to the present date unless the filing of the instant civil action constitutes a legal interruption of that adverse possession.
23. If the filing of the instant civil action did not constitute a legal interruption of the adverse possession by the defendant Collins then title to the property described in Exhibit 27 became absolute in Collins on March 1, 2008, pursuant to C.G.S. section 52-575.