Opinion
No. LLI-CV-08-5005073-S
September 15, 2011
MEMORANDUM OF DECISION
This matter came before the court by writ, summons and complaint dated November 14, 2008. The plaintiffs, Wayne and Allison Mackiewicz, asserted property rights against the defendant, Williama Mucinski. The plaintiffs request a decree fixing the boundaries to their real property which includes an area possessed and occupied by the plaintiffs and their predecessors for more than fifteen years. The plaintiffs also seek an order that the defendant remove a fence and boulders that she caused to be placed on the area occupied by the plaintiffs. Finally, the plaintiffs seek an order that the defendant restore the disputed area to the condition it was in prior to October 8, 2008.
The defendant answered the complaint, denying the material allegations. She also raised special defenses, asserting that she holds legal and equitable title to the disputed area and that the plaintiffs' predecessor in interest abandoned and/or waived any claims to adverse possession that she may have had. Thereafter, the defendant filed a counterclaim asserting that on or about June 11-13, 2010, the plaintiffs trespassed on her property when they tore down a fence she had erected within the disputed area. She claims, further, that the plaintiffs refused to return the fence to her. Finally, the defendant seeks an order of this court quieting title with regard to the disputed area.
This matter came before the court for trial on June 2, 2011, concluding on June 3, 2011. Witnesses who testified included Kenneth Hrica who, the parties stipulated, is an expert surveyor and title searcher. Judith Mackiewicz, the plaintiffs' predecessor in title, testified for the plaintiffs, and the plaintiffs themselves testified. The defendant's witnesses included Wayne Mackiewicz' brother, Kevin Mackiewicz, the defendant, and the defendant's daughter, Geraldine Mucinski. The evidence presented included surveys, photographs and letters pertaining to the dispute. Both parties rested on June 3, 2011. The court viewed the disputed area, accompanied by counsel for both parties, on June 8, 2011. The parties submitted simultaneous briefs on July 22, 2011, followed by simultaneous reply briefs on August 19, 2011. The court finds in favor of the plaintiffs.
I FACTUAL HISTORY
Based upon the testimony and exhibits presented at trial, the reasonable inferences drawn from the evidence and taking into account the court's evaluation of the credibility of the witnesses, the court finds the following facts to have been established by clear and convincing evidence. On or about April 9, 1960, George and Judith Mackiewicz acquired title to 810 Hill Road in Harwinton, Connecticut. The land was conveyed to them by John and Arlene Mackiewicz. The 810 Hill Road property is approximately one acre. It is bordered on the west by Hill Road, also known as Route 222. The property is bordered on the north, east and south by property owned by the defendant and known as 800 Hill Road. The defendant holds more than thirty-two acres, most of which are sloped and wooded. The area claimed by the plaintiffs is roughly rectangular; a 2004 survey commissioned by the defendant shows 810 Hill Road to be less a rectangle than a parallelogram.
In 1960, John Mackiewicz arranged to do some bulldozing on the property that became 810 Hill Road. Shortly after they acquired 810 Hill Road, George and Judith Mackiewicz did additional bulldozing on the north side of their property. That action served to eliminate the north-south slope on the north side of the property and created a broad, level area that was, thereafter, seeded to become a lawn. Throughout the 1960s, George and Judith Mackiewicz also planted trees and bushes, and otherwise took open and visible action to establish a line of demarcation between what they believed was the northern boundary of their property and the adjoining property held by George Mackiewicz' brother, John A. Mackiewicz and John's wife, Arlene Mackiewicz.
George Mackiewicz, in order to mark the northern border of the Mackiewicz property, planted twelve to fifteen one-foot saplings along the north side of 810 Hill Road, beginning at Hill Road itself and running about two-thirds of the way up the north side of the Mackiewicz property. The saplings grew to full size with diameters of up to, approximately, fourteen inches.
During the period of 1961 through 1962, George and Judith Mackiewicz cleared land and planted grass and shrubs on the south side of what they believed was their property. On the east side of the property they dug a drainage ditch, planted grass and, in the late 1960s, they built a chicken coop in the southeast corner of the property. At least as early as 1968, the Mackiewicz family built a shed on the east side of their property.
On or about July 11, 1969, Edward and defendant Williama F. Mucinsky purchased 800 Hill Road from John and Arlene Mackiewicz. On July 1, 2004, Judith Mackiewicz sold 810 Hill Road to her son, plaintiff Wayne Mackiewicz and his wife, plaintiff Allyson Mackiewicz. Wayne Mackiewicz had spent much of his childhood on the 810 Hill Road property and shared in the chores associated with maintaining the property.
The defendant and Edward J. Mucinski divorced prior to the institution of this action. It was in the context of that divorce that Edward J. Mucinski quitclaimed his interest in 800 Hill Road to the defendant. George Mackiewicz died prior to the institution of this action.
Plaintiff Wayne Mackiewicz was six years of age when the defendant and her husband purchased 800 Hill Road.
The disputed area was cleared, cultivated and maintained by George and Judith Mackiewicz, and, thereafter, by the plaintiffs, openly, visibly, obviously and continuously from at least 1962 to the present. From the period beginning in or about 1962 through approximately October 2003, neither John nor Arlene Mackiewicz, nor their successors in title, Edward and defendant Williama Mucinsky, took any action to manifest possession, dominion or control over the area leveled, cleared and maintained by George and Judith Mackiewicz and, thereafter, by their successors in title, Wayne and Allyson Mackiewicz. From the period beginning on or about 1962 through approximately October 2003, neither George or Judith Mackiewicz, nor their successors in title, Wayne or Allyson Mackiewicz, asked or received permission from Edward or Williama Mucinski to level, clear or maintain the area that is at issue.
All of the work on the north and south sides of the plaintiffs' property was clearly visible to all, including the defendant, from Hill Road. Further, the work done on the east side of the plaintiffs' property was readily apparent to the defendant. Indeed, the plaintiffs and their families, and the defendant and her family members, were close friends for many years. The children in both families played together, often on the plaintiffs' property, they camped in the woods owned by the defendant, and yet the defendant took no action to oust the plaintiffs from the area at issue until late in 2003.
In 2003, the defendant obtained a survey of her property in connection with changes associated with her septic system. That survey indicated that George and Judith Mackiewicz had leveled, cleared and maintained an area that was, for the most part, slightly beyond their north, east and south boundaries, as identified in the survey. The area at issue is identified on the plaintiffs' exhibit ("PX") 35 by a broken red line. It is denoted as the "area of occupation."
The surveyor who prepared PX 35 labeled the broken red line on the exhibit as the "line of occupation." PX 35 also reflects the Mackiewicz property line as set forth in the 2003 survey. All references in this opinion to the "area of occupation" are intended to refer to that area that lies between the property line identified in the 2003 survey (as shown on PX 35) and the broken red line on PX 35 labeled "line of occupation."
In October 2003, the defendant, having seen the results of the survey she had commissioned, directed her lawyer to send a letter to Judith Mackiewicz, demanding that Judith Mackiewicz move a shed on the east side of the Mackiewicz' property that, according to the survey, was located on the defendant's land. The letter also directed Judith Mackiewicz to stop her son, plaintiff Wayne Mackiewicz, from mowing "that portion of the grass area which is located within the boundaries of my client's property." The defendant, herself, wrote to Judith Mackiewicz, demanding that Mackiewicz pay the $250 expense that the defendant incurred in order to have her lawyer write to Judith Mackiewicz. Judith Mackiewicz paid the defendant's $250 demand and agreed to move the shed, thinking she had to do so in order to market her property. Judith Mackiewicz conveyed 810 Hill Road to the plaintiffs on July 1, 2004.
The defendant took no other action to assert her ownership of the area of occupation until October 2008. At that time, she arranged for the installation of a "cattle fence" to run through much of the lawn area that had been maintained by the plaintiffs and their predecessors in title since approximately 1962. In addition, the defendant arranged for various large boulders to be placed along the line established by the survey and she adorned the cattle fence with approximately twenty-five "no trespassing" signs.
In the summer of 2010, the plaintiffs took down the cattle fence. If the property were to be restored to its original condition, the boulders and dirt would have to be removed, along with the cattle fence materials. The holes would have to be filled and the area re-seeded. The plaintiffs obtained an estimate for the restoration that reflects probable expense in the range of two thousand dollars.
II PLAINTIFFS' POSITION
The plaintiffs argue that George and Judith Mackiewicz, through bulldozing, plantings, improvements and uses, openly and visibly ousted the defendant from possession of the "area of occupation" as depicted by the broken red line on PX 35. All of the material bulldozing, planting, ditch digging and other, similar actions began as early as 1960 and were in place by 1969, the year the defendant and her former husband purchased their property.
The plaintiffs argue, next, that George and Judith Mackiewicz occupied and maintained the area of occupation continuously and without interruption from 1969 through 1984 and beyond. They claim that there is no evidence that the defendant took any action to occupy or take dominion of the area of occupation at any time between 1969 and 2008. The plaintiffs contend that they, and their predecessor in title, hold the area of occupation under a claim of right because they entered and possessed the area of occupation for approximately forty years. There was no evidence, they allege, that the plaintiffs or their predecessor in title had permission or consent from the defendant to enter and hold the area of occupation.
The plaintiffs seek to "tack on" the period of adverse use by their predecessors in title to the period of time that they have held title to 810 Hill Road, i.e., July 1, 2004, to the present. The plaintiffs appear to acknowledge that, when Judith Mackiewicz deeded 810 Hill Road to them, the deed cited the identical description of the property that was used when the property was first conveyed to Judith Mackiewicz. Therefore, the deed does not appear to specifically convey any adverse possession interests that Judith Mackiewicz may have acquired prior to 2004. The plaintiffs argue, however, that two statutes operate in a manner that effectively conveys any adverse interests that Judith Mackiewicz may have acquired prior to July 1, 2004: General Statutes §§ 47-36l and 47-36b.
The plaintiffs take the position that the defendant was ousted from possession of the area of occupation and title became absolute in Judith Mackiewicz in 1984, the fifteenth year after the defendant took title to her property. The plaintiffs contend that there is no evidence that the defendant took any steps within that fifteen-year period that serve to dispute Judith Mackiewicz' right of possession with regard to the area of occupation.
The plaintiffs reject the defendant's argument that Judith Mackiewicz relinquished her right to the area of occupation when, at the defendant's insistence, Judith Mackiewicz moved a shed out of the area of occupation. They argue that there is no authority for the proposition that the movement of the shed, in 2003, nullifies an interest that was perfected in 1984. They claim, further, that Judith Mackiewicz and her successors in title continued to occupy the area of occupation until 2008, when the defendant erected the cattle fence. The plaintiffs contend that the defendant should be ordered to remove that fence and to restore the property to the condition it was in before the fence was erected.
III DEFENDANT'S POSITION
The defendant asserts that this case presents three issues: (1) whether the plaintiffs met their burden to prove adverse possession for any aspect of the defendant's premises at 800 Hill Road in Harwinton, Connecticut; (2) whether the plaintiffs committed criminal trespass by removing the cattle fence that the defendant erected in 2008; and (3) whether the plaintiffs converted the fence to themselves by not returning it to the defendant. The defendant contends that the plaintiffs have not established, by clear and convincing evidence, each element of adverse possession.
The defendant initially objected to any claims relative to the eastern portion of the plaintiffs' property. Her objection was based on the fact that the complaint did not appear to make allegations with regard to the eastern side of the plaintiffs' property. However, in her post-trial brief the defendant withdrew her objections to testimony relating to claims of adverse possession over the eastern boundary of plaintiffs' rear property line.
Although the defendant admits that the plaintiffs' predecessors in title bulldozed the area that currently makes up 810 Hill Road, she claims that she was not "ousted" from possession of the area of occupation for the necessary fifteen-year period. The defendant bases this claim on her view that the Mackiewicz and Mucinski families had amicable relations until the property dispute first arose in 2003. She concludes, therefore, that the plaintiffs' use of the area of occupation was permissive and not, as is required, "hostile."
The defendant argues that the plaintiffs did not erect boundary markers, walls, fences or "no trespassing" signs around the area of occupation. Thus, the defendant claims, she was not on notice that it was necessary for her to protect her interest in the area of occupation. In fact, the defendant notes that, after the 2003 survey, when she asked Judith Mackiewicz to remove a shed that was located within the area of occupation, Judith Mackiewicz complied. Further, the defendant notes that Judith Mackiewicz agreed to pay the defendant's attorneys fees that were associated with the issuance of a demand letter to Judith Mackiewicz.
The defendant also points to the fact that, when Judith Mackiewicz conveyed her property to her son and daughter-in-law in 2004, she used the same property description that was used in 1960 when she and her husband first acquired the property from John and Arlene Mackiewicz. Thus, the defendant argues, Judith Mackiewicz failed to convey the disputed property "either orally or by deed" and, therefore, the plaintiffs cannot tack on to any period of adverse possession that Judith Mackiewicz may have held. In support of this proposition, the defendant relies on Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 652, 905 A.2d 1256 (2006).
The defendant also relies on Barrs v. Zukowski, 148 Conn. 158, 169 A.2d 23 (1961) for the proposition that, even if the party claiming adverse possession built a wall and maintained a lawn for fifteen years, adverse possession is not established due to the claimant's inability to locate the proper boundary lines of their property and the claimant's failure to meet the other elements of adverse possession. The defendant admits that the plaintiffs' predecessors possessed the lawn area for fifteen years but denies that the plaintiffs, or their predecessors in title, established all of the other, necessary elements of adverse possession.
IV DISCUSSION
The issue for the court is whether the activity and conduct established by the evidence satisfies the requirements of the law to establish title in the plaintiffs by 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 [or her] own and without the consent of the owner." (Internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 763, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007); Alexson v. Foss, 276 Conn. 599, 614 n. 13, 887 A.2d 872 (2006).
General Statutes § 52-575(a) provides in relevant part that "[n]o 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; and no such entry shall be sufficient, unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or person who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention of the person giving the notice to dispute the right of possession of the person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in section 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto by the continuance of the use and possession for any length of time thereafter, provided an action is commenced thereupon within one year next after the recording of such notice."
General Statutes § 47-39 provides in relevant part that "[t]he notice . . . shall be served like an original summons in civil actions on the person claiming or using the way or easement, his agent or guardian . . . otherwise on the tenant or occupant of the estate to which the way or easement is claimed to be appurtenant . . . The service shall be endorsed and returned on the original paper, and the notice with the return shall be recorded in the land records of the town in which the land lies, within three months after the service."
"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." (Internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, supra, 101 Conn.App. 767; see Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). "The burden of proof is on the party claiming adverse possession." Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., 69 Conn.App. 839, 844, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002). "In the final analysis, whether possession is adverse is a question of fact for the trier." Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982).
"[A]dverse possession claims are highly fact and context specific. In evaluating such claims, [t]he location and condition of the land [at issue] must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions." (Internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn.App. 759, 775, 890 A.2d 645 (2006). "To determine whether particular acts constitute adverse possession, it is sometimes necessary to consider the character of the property and the purposes for which it is suitable, the circumstances attending the possession, the acts and declarations of [the] claimant while in possession, and the relation of the holder of the legal title to the claimant." (Internal quotation marks omitted.) Id. Even seasonal use of an area in dispute, if regular and adverse, may be a sufficient basis for a claim of adverse possession. Roche v. Fairfield, supra, 186 Conn. 501. "It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control of use such as is consistent with the character of the premises in question." (Internal quotation marks omitted.) Id., 502-03. The exclusivity requirement in these cases serves to give notice to the owner that an adverse claim to her ownership is being made. Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn.App. 781.
"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 land to his own use and the exclusion of others . . . Thus, the claimant's possession need not be absolutely exclusive; it 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." (Internal quotation marks omitted.) Mulle v. McCauley, 102 Conn.App. 803, 817, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).
"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." Id., 813-14. "The word `hostile,' as employed in the law of adverse possession, is a term of art; it does not, despite some troublesome early cases, imply animosity, ill will or bad faith. Nor is the claimant required to make express declarations of adverse intent during the possessory period. Conversely, in order to obtain title by adverse possession one need not be under a good faith mistake that he or she had a legal title to the land . . . Hostile possession can be understood as possession that is opposed and antagonistic to all other claims, and that conveys the clear message that the possessor intends to possess the land as his or her own." (Citation omitted; internal quotation marks omitted.) Id., 814. A `claim of right' does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner's right to possession. Horowitz v. F.E. Spencer Co., 132 Conn. 373, 378, 44 A.2d 702 (1945).
The court finds that the plaintiffs established, by clear and convincing evidence, that George and Judith Mackiewicz possessed the area of occupation for a period that began in 1969 and continued, without interruption, at least until 2003, and that they possessed the area of occupation as their own to the exclusion of all others. Their activity in the area of occupation was continuous and diverse. The activity was open and obvious and could have been seen, for the most part, from Hill Road. Further, the Mucinski family members were, on many social occasions over the years, invited onto the Mackiewicz property at 810 Hill Road. Thus, the Mucinskis, including the defendant, were fully aware that George and Judith Mackiewicz were occupying and using the area of occupation as their own property. Neither George nor Judith Mackiewicz ever asked Edward or Williama Mucinski for permission to use and occupy the area of occupation, nor did Edward or Williama Mucinski give the Mackiewicz' permission to use and occupy the area of occupation.
The Mackiewicz' use of the area of occupation involved the actual possession of the land and their possession was clearly defined in multiple ways. First, the area of occupation was created, in part, by clearing trees and bulldozing an area of sloping land that permitted the Mackiewicz' to create a level area where a lawn could be developed. The area of occupation was further delineated, on the north side, by a line of trees that was planted by George Mackiewicz and that grew to maturity, as well as by a series of perennial plantings that, together with the lawn area, clearly and definitively demonstrated a distinct border between the Mackiewicz property and the sloping, wooded property owned by the Mucinskis. On the eastern side of the Mackiewicz property, the area of occupation is clearly marked by a drainage ditch that was dug, and maintained, by the Mackiewicz family. The area further east of the drainage ditch is undeveloped, unimproved land filled with brush and trees. On the southern side of the Mackiewicz property, the area of occupation follows, at the eastern end of the southern boundary, the property line identified in the 2003 survey. Thereafter, the southern boundary veers further southward, creating the area of occupation, and is clearly marked by more perennial plantings that were placed by George and Judith Mackiewicz. The land south of the line of plantings is, as with the other areas outside the area of occupation, undeveloped and filled with brush and trees. In addition, it slopes away from the Mackiewicz property. George and Judith Mackiewicz, and thereafter Wayne Mackiewicz, carried out all the foregoing work and property maintenance in, and on, the area of occupation. The defendant, on the other hand, did not perform any landscaping, ditch-digging, planting or other similar type of work in, or on, the area of occupation until 2008 when she arranged for the installation of the cattle fence.
The court makes the foregoing findings based not only on the photographs in evidence and the direct testimony of the witnesses, but also as a result of the court's own observations during the site visit, at which time the court had the opportunity to compare the representations in PX 35 with the reality of the property. The area of occupation created, maintained and used by the Mackiewicz family from 1969 to the present is easily distinguished from the Mucinski property that surrounds it on the north, east and south.
The defendant suggests that there is considerable uncertainty as to the area claimed by the plaintiffs, at least on the east and south sides of the Mackiewicz property. The court disagrees. It is true that the evidence does not provide a metes and bounds description of the area of occupation, but the topography of the area of occupation, together with the drainage ditch, the bulldozed and maintained lawn area as well as the plantings, clearly and distinctly delineate the area of occupation from the Mucinski property that surrounds it on three sides.
The court finds, by clear and convincing evidence, that Judith Mackiewicz satisfied the necessary elements of adverse possession and took possession of the area of occupation no later than 1984. The area of occupation was clearly, openly and visibly occupied by George and Judith Mackiewicz, and thereafter by Judith Mackiewicz alone, and then by the plaintiffs, without interruption and exclusively at least as early as 1969 and continuing into 2008. The plaintiffs, and their predecessors in title, used the area of occupation peaceably and in a manner adverse to the defendant from 1969 to 2008. There is no credible evidence that the defendant gave the plaintiffs or their predecessors in title permission to occupy and hold the area of occupation. From 1969 to 2008, the defendant was only present in the area of occupation when she was visiting one or more members of the Mackiewicz family, all of whom used the area of occupation as theirs to maintain and for their personal enjoyment.
The fact that the defendant had a cordial relationship with the Mackiewicz family for some thirty-four years before the 2003 survey cannot be converted into a finding that either Edward or Williama Mucinski gave "permission" to the plaintiffs' predecessors in title to use the area of occupation. The defendant is also incorrect in her assertion that adverse possession cannot be found unless the parties are openly "hostile" toward each other. See Mulle v. McCauley, supra, 102 Conn.App. 814. The court is confident that the parties were simply unaware that the area of occupation extended beyond the Mackiewicz property line, as that line is set forth in the 2003 survey. It is of no significance that neither Judith Mackiewicz nor the plaintiffs were aware, from 1969 through 2003, of the boundaries between them as they would be delineated in the 2003 survey. "The possession alone, and the qualities immediately attached to it, are regarded. No intimation is there as to the motive of the possessor. If he intends a wrongful disseisin, his actual possession for fifteen years, gives him a title; or if he occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no enquiry is made. It is for this obvious reason; that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or beliefs of the possessor." (Emphasis in original.) French v. Pearce, 8 Conn. 439, 443 (1831). Since it is immaterial that the possessor was unaware of the precise location of the property line, as shown on the 2003 survey, it is, reciprocally, of no significance that the defendant was unaware of what a survey would show some thirty-four years after she purchased her property. See Carter v. Yampanis, Superior Court, judicial district of Tolland, Docket No. CV 06 5001006 (January 24, 2008, Vacchelli, J.).
Judith Mackiewicz' interest in the area of occupation was vested long before that point in 2003 when the defendant asked her to move a shed from the area of occupation to a point within Judith Mackiewicz' property line, as set forth in the 2003 survey. The movement of the shed, at that point, was an accommodation with no legal effect. Since at that point Judith Mackiewicz had acquired, by adverse possession, the area of occupation, and had held that acquisition for some nineteen years before she moved the shed, the movement of the shed to another location on her own property did not serve as an abandonment of the property.
The defendant concedes this point in her post-trial reply memorandum. The court notes, further, that even though Judith Mackiewicz acquiesced to the defendant's demand that she pay the defendant's attorneys fee in the amount of $250, that action has no legal effect. Judith Mackiewicz had no obligation to pay that bill and the fact that she did so will not serve to eliminate the property right she had already acquired in the area of occupation.
The plaintiffs are entitled to tack the property interests held by Judith Mackiewicz onto their own ownership of the same property, which includes the area of occupation. It is true that Judith Mackiewicz did not use an expanded property description when she conveyed 810 Hill Road to the plaintiffs. Instead, she used the same description that was used to convey 810 Hill Road to her and George Mackiewicz in 1960. However, she also testified that, in 2004 when she conveyed 810 Hill Road to her son, she was conveying the same land that she and her husband held, including the area of occupation.
There is a serious question as to whether the issue of "tacking" need be addressed at all. Tacking is only an issue "[i]f one party's period of use or possession is insufficient to satisfy the fifteen year requirement [in which case] that party may tack on the period of use or possession of someone who is in privity with the party, a relationship that may be established by showing a transfer of possession rights." (Internal quotation marks omitted.) Caminis v. Troy, 300 Conn. 297, 310 n. 14, 12 A.3d 984 (2011) quoting Smith v. Chapin, 31 Conn. 530, 531-32 (1863). The court has concluded that Judith and George Mackiewicz acquired their interest in the area of occupation in 1984. Since their interest was perfected at that time, the plaintiffs need not establish a right to tack on to the period of use or possession of their predecessors in title.
This case stands in stark contrast to Durkin Village Plainville, LLC v. Cunningham, supra, 97 Conn.App. 640, on which the defendant relies. In Durkin Village Plainville, LLC, the party seeking to acquire land by adverse possession had occupied the disputed land for fourteen years and sought to tack onto the predecessor's interest in the same property. Id. Unlike the present case, however, in Durkin Village Plainville, LLC, the predecessor made clear that he only intended to transfer the land described in the deed — he never used the disputed land on a permanent basis; he never used the disputed land under a claim of right; he never fenced in the disputed area; and he did not intend to occupy any land otherwise owned by his neighbor. Id., 651-52.
Unlike in Durkin Village Plainville, LLC where the party claiming property by adverse possession had nothing on which to tack his interest, in the present case, the property interest in the area of occupation was fully vested in Judith Mackiewicz long before she conveyed her interest in 810 Hill Road to her son. Thus, the issue before the court is not whether the plaintiffs are entitled to tack on the interest in the area of occupation held by their predecessors in title but rather whether, in 2004, Judith Mackiewicz adequately conveyed her interest in the area of occupation to the plaintiffs. Here, unlike in Durkin Village Plainville, LLC, Judith Mackiewicz fully intended to convey the entire interest that she held in 810 Hill Road and, since her interest in the property included the area of occupation, it is clear that she intended to, and did, convey that area to the plaintiffs.
The foregoing conclusion is further supported by the provisions of General Statute § 47-36l which provides: "In any conveyance of real property all rights, privileges and appurtenances belonging or appertaining to the granted or released estate are included in the conveyance, unless expressly stated otherwise in the conveyance and it is unnecessary to enumerate or mention them either generally or specifically." There is no claim by the defendant, nor could there be, that Judith Mackiewicz expressly stated in the conveyance that she was excluding the area of occupation that she had acquired by adverse possession. Indeed, as has been stated, supra, her intention was to the contrary.
Similarly, General Statutes § 47-36b provides in relevant part that "[a]ny conveyance made pursuant to this chapter . . . conveys to the grantee all the possession, right, title, interest, estate, claim, demand or right of entry or action, of the grantor, absolutely in and to the land conveyed, unless otherwise expressly limited in estate, condition, use or trust and, if so otherwise limited, conveys the property for the time or estate or on the condition, use or trust as declared, without any other act or ceremony." Again, the defendant does not claim, and the facts do not show, that Judith Mackiewicz expressly limited any interest she had in 810 Hill Road and/or the area of occupation when she conveyed 810 Hill Road to the plaintiffs.
Since the court finds that the plaintiffs hold the area of occupation through adverse possession, the remaining issues can be readily addressed. The defendant committed a trespass when she erected the cattle fence on the plaintiffs' property in 2008. Caciopoli v. Lebowitz, 131 Conn.App. 306 (2011). Therefore, the court orders the defendant to compensate the plaintiffs for the damage done to their property due to the installation of the cattle fence and the boulders, including the costs associated with restoring the property to its former character. If the parties are unable to agree as to what those costs will be, the court will entertain a motion for an evidentiary hearing to address the issue. The court finds that the plaintiffs did not convert the fencing to their own use. Wayne Mackiewicz testified that he simply took down the fencing and it is currently piled on his property. The parties are directed to attempt to agree on a date on which the defendant will, at her expense, remove the fencing from the plaintiffs' property. If they cannot agree on a date to address the foregoing issue, either party is invited to file an appropriate motion, enlisting the aid of the court in resolving the matter.
Judgment may enter establishing the right, title and ownership in the area of occupation, as set forth and identified in PX 35, in the plaintiffs Wayne and Allyson Mackiewicz.
So ordered.
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