Opinion
CV146022041
02-11-2016
Anthony Cotoia et al. v. Connecticut Spiritualist Society, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION (#113) FOR SUMMARY JUDGMENT
Emmet L. Cosgrove, J.
Through a complaint filed September 2, 2014, the plaintiffs, Anthony and Rosemary Cotoia, brought this adverse possession action against the defendant, Connecticut Spiritualist Camp Meeting Association. On September 11, 2015, the defendant moved for summary judgment on the ground that it is immune from claims for adverse possession as a quasi-municipality. In their objection to the motion for summary judgment filed on November 12, 2015, the plaintiffs contend that a claim for adverse possession against a municipality exists when, as they assert here, the land owned by the municipality was never devoted to public use. The motion was heard at short calendar on November 30, 2015. Because genuine issues of material fact remain regarding public use and intentional abandonment by the defendant, the motion is denied.
In their initial filing, the plaintiffs misnamed the defendant as the Connecticut Spiritualist Society. The defendant admits in its answer that the Connecticut Spiritualist Society and the Connecticut Spiritualist Camp Meeting Association are the same entity.
FACTS
In their complaint, the plaintiffs allege the following facts. The plaintiffs have resided at 14 Broadway, Niantic, Connecticut for twenty years. The defendant owns property known as Spring Street, Niantic and identified as such on a map entitled " Street Line Map of the Connecticut Spiritualist Camp Ground Roads." For more than fifteen years, the plaintiffs have been continuously utilizing a portion of Spring Street adjacent to their property. Their use and actions have been open and notorious, adverse to the defendant, and to the exclusion of all others. Spring Street is not now, nor has it ever been deeded to, or accepted by, East Lyme as a public street. The defendant placed an easement on the easterly portion of the street in favor of Southern New England Telephone Company, but the easement does not affect the area occupied by the plaintiffs. The subject section of Spring Street has never been improved or opened for use by the public. The plaintiffs have been in exclusive possession of this portion of Spring Street and now possess title to it by adverse possession. The plaintiffs seek a declaratory judgment of title, costs, and other remedies allowed at law or equity.
The defendant filed an answer and special defense on May 8, 2015 admitting ownership of the subject property and that it is the successor in interest to the Connecticut Spiritualist Camp Meeting Association of Windham, stating that the Connecticut Spiritualist Society and Connecticut Spiritualist Camp Meeting Association are the same entity. The defendant specially pleaded a defense that it is a quasi-municipal corporation and its property, dedicated to public use, cannot be acquired by adverse possession.
The defendant supports this motion for summary judgment with an affidavit of its president, Patricia Spencer; copies of its charter and bylaws for the years 1905, 1914, 1935, and 1947; a copy of the original 1882 deed conveying to the defendant property in East Lyme; a document entitled " Street Line Map of the Campgrounds, " which indicates it was filed in the Office of the Town Clerk of East Lyme in 1958; and a document that includes language from a 1957 special act of the General Assembly amending the defendant's taxing power. In their objection to the motion for summary judgment filed on November 12, 2015, the plaintiffs contend that a claim for adverse possession against a municipality exists when, as they assert here, the land owned by the municipality was never devoted to public use. In support of their opposition, the plaintiffs offer the following evidence: an affidavit signed by both plaintiffs; the same street line map submitted by the defendant; minutes from a special meeting of the Pine Grove Niantic Association held on September 9, 2014 and reconvened on September 15, 2014; a map showing a proposed easement to the town of East Lyme under the property of the defendant; another map depicting the area, highlighting of the plaintiffs' property and the property allegedly adversely possessed; and a document purporting to grant an easement to the town of East Lyme by the defendant for the purposes installing and maintaining town sewer services.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56-57, 68 A.3d 1162 (2013).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). " A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable." (Emphasis omitted; internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).
In this case, the plaintiffs seek to acquire title by adverse possession of real estate owned by the defendant, a quasi-municipal corporation.
" Quasi-municipal corporations are governed by the law applicable to municipal corporations." Candlewood Hills Tax District v. Medina, 143 Conn.App. 230, 237, 74 A.3d 421, cert. denied, 310 Conn. 929, 78 A.3d 856 (2013). " Title to realty held in fee by a state or any of its subdivisions for a public use cannot be acquired by adverse possession." Goldman v. Quadrato, 142 Conn. 398, 402-03, 114 A.2d 687 (1955).
The elements for a claim of adverse possession are well settled. To establish title by adverse possession, the claimant must demonstrate " that the owner [has been] ousted of possession and kept out uninterruptedly for fifteen years by an open, visible and exclusive possession by the claimant, under a claim of right, with intent to use property as his own, and without license or consent by the owner." Goldman v. Quadrato, supra, 142 Conn. 402. The statutory period for adverse possession is fifteen years. General Statutes § 52-575(a). " A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession . . ." (Internal quotation marks omitted.) Har v. Boreiko, 118 Conn.App. 787, 798-99, 986 A.2d 1072 (2010).
General Statutes 52-575(a) provides in relevant 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 years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards . . ."
As against a quasi-municipality such as the defendant the burden of proof and persuasion are greater. " In light of the myriad of public uses that may be advanced through public ownership of undeveloped lands . . . property that is held in fee simple ownership by municipalities must be presumed to be held for public use . (Emphasis added.) It follows that the party seeking title by adverse possession must bear the burden of rebutting that presumption. Municipal immunity from adverse possession is the rule and not the exception, and [our Supreme Court has] consistently held that the party seeking to acquire title by adverse possession bears the burden of proving all the elements of adverse possession." (Internal quotation marks omitted.) American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 80, 574 A.2d 796 (1990).
If a plaintiff demonstrates that public use has been intentionally abandoned, a claim lies for adverse possession. See Campanelli v. Candlewood Hills Tax District, 126 Conn.App. 135, 140, 10 A.3d 1073 (2011). " Public rights to municipal property will not be forfeited by lack of use absent some additional evidence indicating that the municipality intended to abandon the property." Id., 140. " [T]he public use requirement can be satisfied even if a property is not presently subject to public use so long as it is held with an intention to develop it at some time in the future." American Trading Real Estate Properties, Inc. v. Trumbull, supra, 215 Conn. 79. " The plaintiffs' burden, therefore, [is] to rebut the presumption that the property was being held for public use." Campanelli v. Candlewood Hills Tax Dist, supra, 141.
Abandonment, as used in this context, is question of fact and the intent to abandon may be inferred as fact from the circumstances. Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 631, 814 A.2d 396, cert. denied. 263 Conn. 901, 819 A.2d 836 (2003). A look at intentional abandonment in the context of public highway easements illuminates what is necessary to demonstrate intentional abandonment. For example, the Supreme Court upheld a finding of intentional abandonment where the public failed to use any part of a highway for over sixty years, holding that such time was long enough to warrant an inference of an intentional abandonment. Newkirk v. Sherwood, 89 Conn. 598, 603-05, 94 A. 982 (1915). The Supreme Court also held that where an old road had been substituted by a new road and there was no use of the old way for fifty years, the old road was abandoned. Benham v. Potter, 52 Conn. 248, 250-52 (1884). Conversely, the Appellate Court held that intentional abandonment was belied, despite nonuse of a highway for more than 200 years, where the over the same period " many conveyances of properties abutting the road and [a] plethora of maps depict[ed] the highway." Montanaro v. Aspetuck Land Trust, Inc., 137 Conn.App. 1, 21-22, 48 A.3d 107, cert. denied, 307 Conn. 932, 56 A.3d 715 (2012). A public easement remains when a highway is in constant use but not improved over the entire width of its layout for over one hundred years despite encroachment by adjoining proprietors, absent other unmistakable evidence of abandonment. Appeal of St. John's Church, 83 Conn. 101, 105, 75 A. 88 (1910). The width of a highway may be curtailed, however, where nonuse by the public is accompanied by a claim of ownership and acts of ownership by a private party in conjunction with municipal recognition of that ownership. New London v. Pequot Point Beach Co., 112 Conn. 340, 347-55, 152 A. 136 (1930).
In the present case, the defendant argues that it owns Spring Street, that the street is dedicated to public use, and a claim for adverse possession cannot lie against it because it is a quasi-municipality. The plaintiffs stated at oral argument that the defendant may be assumed to be a quasi-municipality. Because the court assumes for this motion that the defendant is a quasi-municipality and because the plaintiffs recognize the defendant's ownership of the land in dispute, public use is presumed. The plaintiff must, therefore, rebut the presumption of public use or present evidence that such use has been abandoned.
The defendant provides documents as to its use of the property in question. The president's affidavit avers the following. The defendant entered into agreements and easements with the town of East Lyme for the installation of sewers for the public benefit beneath the streets of the defendant, including portions of Spring Street. Additionally, the defendant expended funds for maintenance of Spring Street, including removal of overhanging trees in the perimeter of the street. With affiliated organizations, the defendant entered into contracts for the management and maintenance of the defendant's properties. The defendant avers that the plaintiffs, and their predecessors, have never constructed or established any sort of permanent fixture, building, or other construction on the disputed area of Spring Street. The defendant claims it advised the plaintiff on previous occasions that the storing of firewood, a boat, and other materials on Spring Street was contrary to the bylaws of the defendant and the plaintiffs thereafter removed the material without dispute or contest.
The plaintiffs' attest to the following in their affidavit. The defendant has never removed anything of the plaintiffs from the disputed area. The disputed area has never been used for a public purpose nor has it ever been opened up for use by the public and other areas of Spring Street have buildings constructed upon them, obstructing access to the street. They further attest that the defendant has never used the disputed area during their ownership, nor the area west of their land occupied by a private dwelling. They also state that neither the defendant nor members of the public have ever used the disputed area or the neighboring undeveloped portions of the street. Finally, the plaintiffs avow that there has been no public use of the area for more than twenty-five years. Specifically, there was no use being made when they purchased their property and the plaintiffs' have continuously used the disputed area for the last twenty-five years and their predecessors likewise used it for at least eighteen years before that. Accordingly, much of the president's affidavit speaks to Spring Street generally, while the plaintiffs provide statements that go to the purported nonuse and abandonment of the disputed area and undeveloped section of the street.
The defendant argues that the grant of a sewer easement under portions of Spring Street is evidence of public use. The easement grant provided by the plaintiffs, however, seems to indicate that only the western, developed portion of Spring Street was granted for use as an easement. Whether an easement exists under the undeveloped section of Spring Street is unclear. Accordingly, whether such a grant is evidence of public use is a fact in question.
The plaintiffs argue that the maps, submitted as exhibits 3 and 5, included in evidence and commissioned by the defendant unequivocally demonstrate the area of Spring Street occupied by the plaintiffs and others has never been accepted by the defendant and, therefore, has never been dedicated to or accepted for a public purpose. The defendant indicated at oral argument that the sewer easement map was prepared by the town and not by the defendant. Both maps note a section of Spring Street as " dedicated but not accepted." It is unclear to whom or by whom this area of the street has been dedicated or accepted. While the plaintiffs argue that this means that this section of the street has not been accepted by the defendant, they acknowledge in their complaint and memorandum that the defendant owns this section of Spring Street.
" From early times, under the common law, highways have been established in this state by dedication and acceptance by the public." (Internal quotation marks omitted.) Ventres v. Farmington, 192 Conn. 663, 666, 473 A.2d 1216 (1984). These principles are relevant to a public easement that arises upon dedication and acceptance. See id., 667-68. In the present case, however, these concepts may or may not be pertinent. Both parties admit that the defendant owns the road bed. Acceptance of the property for public use is irrelevant because property owned by the defendant as a quasi-municipality is presumed to be held for public use. Again, the plaintiff must rebut this presumption or demonstrate that public use has been intentionally abandoned. Any dedication by the defendant to the town of East Lyme and/or acceptance by the town, however, would be relevant to questions of public use and abandonment because such acts would be evidence of public use and acts of ownership. The submitted evidence, however, does not demonstrate dedication to or acceptance by East Lyme of the subject section of Spring Street.
CONCLUSION
Because material issues of fact exist as to the public use and potential intentional abandonment, the defendant's motion for summary judgment is denied.