Opinion
No. CV06-5003380S
August 22, 2008
MEMORANDUM OF DECISION
Before this court is an action to quiet title of Southbury, Connecticut real estate conveyed in December 24, 1957 by warranty deed from J. Edward Coer to his daughter and son-in-law, Alice C. and William W. Rowland. The description in question consists of the easterly and southerly boundaries of said deed. While the courses and distances described in the deed are unambiguous, easterly 225 and southerly 550 feet, the deed also describes the piece as follows: "Each of the corners of the above premises is marked by an iron pin driven in the ground." When the property was first surveyed in March of 1961, the easterly boundary became 325 feet and the southerly boundary became 526 all because the survey relied upon pipes in piles of stones as described in the 1957 deed. See Plaintiff Exhibit "1."
Some fourteen months after the conveyance to his daughter and son-in-law, J. Edward Coer conveyed by way of warranty deed the piece of property to Lorraine A. Mazzane (Mazzacane) on February 25, 1959. The first piece was bounded northerly by land of William and Alice Rowland, but also with the additional landmark that "the northeast and northwest corners of the above premises are marked by iron pins in the ground." See Plaintiff's Exhibit 6. Thus the conflict began between courses and distances in the 1957 and 1959 deeds versus monuments i.e. iron pins in the ground. As stated earlier, the Rowlands had their property surveyed in 1961 which showed the boundary based on iron pins in a pile of stones. Lorraine Mazzacane had her property surveyed on November 5, 1988 some 29 years after she received title and her surveyor based her northerly boundary line solely on the description of the southerly boundary in the Coer to Rowland deed of 1957, completely disregarding instructions in the deed as to iron pins marking the boundary lines.
Lastly, the current owner of the Mazzacane property hired their own surveyor, Smith Company, to perform a new survey which was performed on May 3, 2004. At that time, the surveyor established the northerly line of the former Mazzacane piece to be that of the Rowland 1961 survey because of the references to the iron pins in the 1957 and 1959 deeds. Curtis Smith, the surveyor, stated "there was a preponderance of evidence supporting the boundary that we showed as a heavy line on our map."
Thus, the legal question presented is whether this court is bound by an unambiguous description in the deeds of courses and distances for boundary lines versus the unambiguous references in both deeds to iron pins marking the boundary lines in question.
Section 47-31(f) of the Connecticut General Statutes provides the following: "The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property."
Judge Flynn in Lisiewski v. Sidel, 72 Conn.App. 861, 866 (2002) stated: "The principles guiding our construction of land conveyance instruments, such as the [deed] at issue in this appeal, are well established. The construction of a deed . . . presents a question of law which we have plenary power to resolve . . . Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511 757 A.2d 1103 (2000)." (Internal quotation marks omitted.) Mackie v. Hull, 69 Conn.App. 538, 541, 795 A.2d 1280, cert. denied, 261 Conn. 916, 917, 812 A.2d 865 (2002). "In determining the location of a boundary line expressed in a deed, if the description is clear and unambiguous, it governs and the actual intent of the parties is irrelevant." (Internal quotation marks omitted.) Id., 542.
Judge Healey stated in Koennicke v. Maiorano, 43 Conn.App. 1, 10 (1996), "Where the deed is ambiguous, however, the intention of the parties is a decisive question of fact. Lake Garde Improvement Ass'n. v. Battistoni, supra; Staff v. Hawkins, 135 Conn. 316, 319, 64 A.2d 176; Giola v. Annunziata, 102 Conn. 52, 56, 127 A. 921; Raymond v. Nash, 57 Conn. 447, 452, 18 A. 714." F. AK, Inc. v. Sleeper, 161 Conn. 505, 510 289 A.2d 905 (1971); see Apostles of the Sacred Heart v. Curott, 187 Conn. 591, 595, 448 A.2d 157 (1982); Faiola v. Faiola, supra, 18. In ascertaining the intention of the parties, it was proper for the trial court to consider the surrounding circumstances. Staff v. Hawkins, supra, 319; Connecticut Light Power Co. v. Fleetwood, 124 Conn. 386, 389, 200 A. 334 (1938).
It is well settled as a rule of the construction of deeds that "[w]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances." Frank Towers Corp. v. Laviana, 140 Conn. 45, 50, 97 A.2d 567 (1953); Velsmid v. Nelson, 175 Conn. 221, 227, 397 A.2d 113 (1978); Russo v. Corideo, 102 Conn. 663, 672, 129 A. 849 (1925). The general rule is that the designated quantity of land called for, here acreage, is the least reliable aspect of the description in determining the intent by the parties. See Texas Eastern Transmission Co. v. McCrate, 76 Ill.App.3d 828, 395 N.E.2d 624 (1979); Erickson v. Wick, 22 Wash.App. 433, 591 P.2d 804 (1979); J. Backman D. Thomas, A Practical Guide to Disputes Between Adjoining Landowners — Easements (1990) § 8.02; 12 Am.Jur.2d, Boundaries § 75. The land of an adjoining owner whose boundaries can be fixed by known monuments is also considered to be a monument to establish a boundary. Frank Towers Corp. v. Laviana, supra, 51.
"The boundary dispute cases do not lend themselves to simple characterization. The analysis is very much based on a fact-specific assessment of each dispute. To the extent any general rule can be derived, it is one that holds the party who can show physical evidence (i.e. a monument of some sort) plus use most often prevails."
"2. Calls for Monuments"
"Monuments that are "called" in a deed are considered to be subordinate to senior rights, the intentions of the parties if clearly stated and original survey lines, but will control over distance, bearing (angles) or area."
"It is important to remember that in order for a monument to be considered superior to other elements, it must have been noted in the written record, either by direct language or by reference to a survey that in turn included the monument. The monument must be identifiable as the original and undisturbed." Unresolved Boundaries by Richard Meehan and Reed D. Rubinstein, Boundary Law in Connecticut pgs. 75, 80 (1997).
Curtis R. Smith testified that there was a storage area belonging to Rowland, the defendant, located on the land in question which "appears to be used by Rowland." Smith determined that the pipes in the ground appeared to be original. He decided that the boundary was the one based on the monuments, not on the distances, after a discussion with Alice C. Rowland, daughter of Edward Coer.
Smith based his decision, as to the boundary line between Carlo Properties, LLC and Alice C. Rowland, on 1) the 1957 and 1959 deeds; 2) the existing storage used by the Rowlands; 3) the existing iron pins marking the boundary which he felt were original; 4) conversation with the original owner's daughter, Alice C. Rowland and 5) an A2 survey of the boundary line in question dated March 1961 by George E. Thompson, Civil Engineer.
Based on the evidence presented at the time of the trial, the court is able to determine the intent of the original parties. The court finds that the southerly and easterly lines of the 1957 deed from Coer to Rowland et al. were based on an iron pin driven in the ground marking each corner. These artificial monuments, iron pins, were also referenced in the Coer to Mazzane (Mazzacane) deed in 1959 and were surveyed in 1961. The court refers to Plaintiff's Exhibit #3 as the correct location of the northerly boundary of the former Mazzacane piece abutting that of Alice C. Rowland and the Estate of William W. Rowland.