Opinion
No. CV 06-6000045
January 8, 2009
MEMORANDUM OF DECISION
I.
The plaintiffs, William M. and Suzanne S. Dufford, filed a one-count complaint against the defendant, Jones-Richards, Inc., dated April 4, 2006 seeking a judgment to establish that the disputed portion of the property, referenced in Exhibit A of the complaint, is included within plaintiffs' boundary line. The plaintiffs also claim a decree of quiet title in their favor and, in the alternative, a judgment that they have acquired sole and exclusive title to the disputed portion of the property by adverse possession.
The property as described in the complaint is as follows:
a certain piece or parcel of land situated in the Town of Glastonbury, County of Hartford and State of Connecticut, and more particularly bounded and described as follows:
a certain piece or parcel of land consisting of 4.8 acres, more or less, situated on the West Side of Tryon Street in South Glastonbury and bounded and described as follows:
NORTHERLY: By land of Ruth M. Dufford;
EASTERLY: By Tryon Street;
SOUTHERLY: By land of Glastonbury Marine, Inc., and
WESTERLY: By the Connecticut River.
Being the Second Piece in a quit-claim deed from Margaret M. Richards, Angela R. Sandberg and Maria R. Favale to Rose D. Ricciardi, dated December 1, 1970, and recorded on December 7, 1970, in Vol. 175, Page 341 of the Glastonbury land Records.
The defendant has filed an answer dated November 25, 2008, asserting a cross claim.
The defendant claims,
1. A judgment determining the rights of the parties in or to the premises and settling the title thereto;
2. A judgment declaring that the defendant is the owner of the disputed portion of the premises; and,
3. Such other and further relief in law or in equity as the court deems appropriate.
However, as to the cross claim, the defendant has attempted to withdraw it on December 15, 2008 which was after the trial and one day before post-trial briefs were due. The plaintiffs filed an objection to said withdrawal dated December 18, 2008. In their objection, the plaintiffs cite Conn. Gen. Stat. § 52-80 which indicates that under present circumstances, leave of the court is required, which was not done. Therefore, the motion to withdraw the counterclaim is denied and the objection to the withdrawal is sustained.
II.
The plaintiffs presented the testimony of the plaintiff, William Dufford of 593 Tryon Street, South Glastonbury, Connecticut. Mr. Dufford is 77 years of age, is retired and has lived in South Glastonbury for 77 years.
The property where the boundary line dispute is located is across the street from 593 Tryon Street and was purchased by plaintiff's father in 1938. The plaintiffs took title by warranty deed dated April 30, 1971, Exhibit 2.
The plaintiff introduced as Exhibit 1, a boundary map prepared for William Dufford by Megson Hyyppa, dated January 25, 1990. It was offered for informational purposes, namely to show the boundary line claimed by the plaintiffs and the boundary line claimed by the defendant.
Mr. Dufford indicated that the land in question is in a flood plain and cannot be developed. He stated that he grew various crops such as corn on the disputed area. Mr. Dufford referred to a large tree which is 150 years old, and is shown on Exhibit 4, and asserts that it shows his southerly boundary line, said tree is also reflected on Exhibit 1. Mr. Dufford also testified that a ridge was created by farmers turning their tractors around at the point of the southern boundary line.
Mr. Dufford testified further that he knew Rose Ricciardi's father, John Ricciardi and saw him on a regular basis and that John Ricciardi never said, you are using my property or get off of my property.
The plaintiff indicated that he leased his property to a Paul Lemke, including the disputed property, for 20 years. Mr. Lemke testified on behalf of the plaintiff and acknowledged that he rented plaintiffs' property for at least 20 years, including the disputed parcel. Mr. Lemke asserted that he knew John Ricciardi for 60 years and that John Ricciardi referred to the large tree, the same tree referenced by Mr. Dufford, as the boundary line. Mr. Lemke also stated that at a younger age he lived with John Ricciardi for a short period of time. Mr. Lemke testified that during that time he would ride with Mr. Ricciardi on the property and Mr. Ricciardi told him that the big tree on the Dufford property was the boundary on the southern boundary of the two properties. Mr. Lemke also confirmed the existence of the ridge on the southern boundary.
Rose Ricciardi testified that she has been going on the property in question for 64 years. She stated that her father never characterized the southerly boundary line by the tree.
She stated further that in 1988 the Department of Environmental Protection held a hearing because she requested that the spoilage from the Connecticut River be allowed on her property, including the disputed parcel. Mr. Dufford attended said hearing and objected to Rose Ricciardi's request as he did not want the fill to spoil his view.
Rose Ricciardi also indicated that in 1980 Mr. Dufford offered to buy all her land, including the disputed property. Rose Ricciardi stated further that within the last ten years she showed the property about twenty times and about eight times to realtors. "For Sale" signs were posted, but were taken down without her permission, and she reported this to the police.
Rose Ricciardi also claimed that she received and paid tax bills for the disputed property. Mr. Dufford did not indicate that he paid taxes on the disputed parcel.
The defendant introduced Exhibit A which is a survey of the area in question, titled Prepared for Rose Ricciardi, Glastonbury, Conn., dated 3/11/76 and prepared by Megson Hyyppa, Civil Engineers.
Rose Ricciardi submitted the survey without expert testimony. The survey was introduced to show the basis for her belief that she owned the disputed property. It is noted that the survey shows the acreage to be 6.4 acres more or less, whereas the defendant's deed, Exhibit 3 shows the acreage to be 4.8 acres, more or less.
Rose Ricciardi's sister, Maria Favale, also indicated that her father, John Ricciardi never characterized the tree as the southerly boundary line.
She also stated that for sale signs were placed on the property and were taken down eight or nine times.
III.
In their posttrial briefs, the plaintiffs acknowledge that the plaintiffs' and the defendant's deeds are not helpful to the court in deciding the quiet title issue because the deed descriptions are general and do not indicate measurements. The plaintiffs, therefore argue that the court should consider any relevant extrinsic evidence, citing Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780-81, 687 A.2d 1270 (1997).
The plaintiffs also cite the case of Carlo Properties, LLC v. Rowland, 2008 Ct.Sup. 13838, where the trial court stated:
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.
The defendant has cited the case of Palmieri v. Bulkley, 137 Conn. 40, 74 A.2d 475 (1950), where the Supreme Court held, "Where there is uncertainty or dispute about a boundary, it may be determined by the parties by the practical location."
The plaintiffs and the defendant agree that the boundary line cannot be determined by the deeds entered into evidence. In that the boundary line cannot be established by the deeds in evidence, the court must consider the physical evidence and practical location.
The credible evidence shows that the plaintiff, William Dufford, farmed his property since 1943. He raised crops on his property and also within the disputed parcel.
Mr. Dufford and his wife took title to the Dufford property in 1971. Mr. Dufford leased the property to Paul Lemke for farming. Mr. Lemke has leased the property for over 20 years.
Mr. Dufford has understood that the southerly boundary of his property ran through a large tree, which tree still stands on the property and is shown on Exhibits 1 and 4. Also, a ridge was created by farmers turning their tractors around at the point of the boundary line.
Paul Lemke has lived at 241 Tryon Street for 22 years and has been retired for 7 years from the Highway Division of the Town of Glastonbury. He has rented land from Mr. Dufford including the disputed property to farm for at least 20 years.
Mr. Lemke is not related to either party and he has known John Ricciardi and Rose Ricciardi for 60 years. At an early age, he lived for a period of time with John Ricciardi and during that time he would ride on the Ricciardi property with John Ricciardi. The court accepts as credible evidence, that John Ricciardi told Paul Lemke that the big tree, referred to earlier, was the southerly boundary line between the two properties.
Rose Ricciardi and her sister Maria Favale indicated that their father, John Ricciardi, never characterized the big tree as the southern boundary line, this is a negative suggestion whereas the testimony of Paul Lemke that John Ricciardi told him the big tree was the southern boundary is a positive assertion and is more compelling and substantial. The court finds that the testimony of Paul Lemke is more credible and persuasive.
The credible evidence also shows that Mr. Lemke confirmed the testimony of William Dufford that a ridge was created at the point of the boundary line by farmers turning their tractors around.
The court concludes that the evidence of Mr. Lemke is compelling and is credible in determining the southerly boundary line of the plaintiffs' property.
Therefore, the court finds that the location of the large tree, as shown on Exhibits 1 and 4, establishes the boundary line by physical evidence. The boundary line as indicated was also further established by the acknowledgment of the tree as the boundary by John Ricciardi to Paul Lemke.
Therefore, judgment may enter for the plaintiffs' claim that the disputed property is included within the plaintiffs' boundary line.
IV.
The plaintiff also seeks title to the disputed property on the basis of 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 . . . A finding of adverse possession is to be made out 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 evidence 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 . . . Adverse possession is a question of fact . . ." (Internal quotation marks omitted.) Lisiewski v. Seidel, 95 Conn.App. 696, 701, 899 A.2d 59 (2006).
The burden of establishing adverse possession is upon the person asserting it by clear and convincing evidence.
The plaintiffs have not shown the element of exclusive use of the property in question.
The court finds that the plaintiffs have not established title by adverse possession by clear and convincing evidence.
V. CT Page 1092
In her cross claim, the defendant has asked that the court determine that the defendant owns the disputed property. The defendant has attempted to withdraw the cross claim and the plaintiffs have objected thereto. The court denies the defendant's motion to withdraw the cross claim and sustains the plaintiffs' objection to said withdrawal.The defendant has not established by a preponderance of the evidence that she is the owner of the disputed property, therefore, the defendant's cross claim is denied and judgment may enter for the plaintiffs on the defendant's cross claim.
CONCLUSION
The plaintiffs have proven by a preponderance of the evidence that the disputed portion of the property is included within the plaintiffs' boundary line, therefore judgment may enter for the plaintiffs that the disputed portion of the property is included within the plaintiffs' boundary line.
The court finds for the plaintiffs on the defendant's cross claim. Therefore, judgment may enter for the plaintiffs as aforesaid.