Opinion
Nos. CV 98 0414820, CV 99 0422102, CV 99 0422100, CV 01 0455411
September 17, 2003
MEMORANDUM OF DECISION
I. PROCEDURAL HISTORY
These four cases were consolidated for trial per order of the court, Silbert, J. on July 22, 2002. The McBurney v. Cirillo case was initiated by writ dated June 30, 1998, returned to this court July 21, 1998. It was a simple trespass action seeking damages and an injunction restraining Frank and Susan Cirillo from entering onto property claimed to be owned by the McBurneys. By amended complaint dated November 18, 2002, a second count was added by the McBurneys, alleging the essentials of a claim for adverse possession. The claims for relief were changed in that the claim for money damages was dropped; the claim for injunction reasserted; and a claim was added for a judgment determining the rights of the parties to the property in question. The Cirillos filed an amended answer dated November 25, 2002, denying the allegations of the complaint and setting out three special defenses to the first count, consisting of a claim by the defendants that they had a right to use the lawn area; title in another; and a claim that the instrument relied on by the plaintiffs was procured by fraud or mutual mistake. A special defense to the second count was asserted alleging that if the plaintiffs had obtained title by adverse possession, the defendants had a prescriptive easement as to the property in question. The allegations of the special defenses were denied in a reply dated November 27, 2002.
McBurney v. Baldwin tracks the pleadings in McBurney v. Cirillo. The McBurney v. Baldwin writ was dated January 20, 1999, returned to court February 9, 1999. The dates of the amended complaint, amended answer and reply are exactly the same in this case as they are in Cirillo and the same legal issues are raised.
The McBurney v. Verderame writ is dated January 20, 1999, returned to court February 9, 1999, the same as the Baldwin complaint. The original CT Page 10878-gg complaint in this case alleged trespass in one count, and sought damages and an injunction. By amended complaint dated December 27, 1999, the plaintiffs added a second count adding the essentials of a claim for adverse possession. They claimed damages, an injunction, and a determination of the rights of the parties in the property in question. The Verderames in an answer dated May 18, 2000, responding to the amended complaint, alleged that they had the right to use the disputed lawn area as a first special defense; title in another as the second special defense; and set up in a third special defense, the inapplicability of the doctrine of adverse possession for the property in question. Thereafter, the Verderames added a counterclaim dated October 25, 2002, alleging a prescriptive easement in the event that the plaintiffs' claim of adverse possession was considered established. The answer to this counterclaim was filed November 27, 2002. Earlier, the plaintiffs in this case had withdrawn their claim for damages. Therefore, the relief sought by the plaintiffs was simply an injunction and a determination of the parties' rights in the property.
The McBurney v. Paquin case essentially tracks the pleadings in the McBurney v. Verderame case. This writ was dated August 15, 2001, returned to court September 18, 2001. The complaint in the Paquin case is essentially the same as the amended complaint in Verderame. The answer and special defenses were filed July 31, 2002; the reply November 27, 2002; the counterclaim October 25, 2002; and the answer to the counterclaim November 27, 2002. The issues raised in this case are the same as those raised in Verderame.
The distinguishing factor between the Cirillo and Baldwin cases and the Verderame and Paquin cases is the existence of the so-called "property agreement" that the Cirillos and Baldwins claim was executed under mutual mistake and should be set aside.
The trial commenced in a companion case, Verderame v. McBurney, CV 01 0453999, which is a jury case, on October 29, 2002, with jury selection. The parties selected six jurors through November 1, 2002, when the court indicated to counsel that it was reconsidering its decision to try the jury case and four non-jury cases at the same time, and might proceed with the non-jury cases first, as the posture of the case made it nearly impossible to submit the issues in orderly fashion to a jury.
On Tuesday, November 5, 2002, the court discharged the jurors chosen in Verderame v. McBurney, and advised counsel that the four non-jury cases initiated by Mr. and Mrs. McBurney would proceed in a trial to the court, after which, depending on the outcome of these cases, the plaintiffs in the Verderame v. McBurney case could proceed with their jury CT Page 10878-gh trial. On Wednesday, November 6, 2002, the court visited the scene of these property disputes with counsel in the morning. Evidence commenced on this same day in the afternoon. The presentation of evidence required eleven days of testimony. The last day of trial was November 27, 2002, at which time the defendants indicated that they would call Adam Paquin and Grace Callejo in surrebuttal.
Subsequently the court was informed that since the evidence the defendants planned to offer impacted only on the credibility of one plaintiff witness offered in rebuttal, it was decided to abandon surrebuttal and file the briefs so as to avoid further delay. Briefs and reply briefs have been filed by the parties, the last of which was filed on May 27, 2003. The court, thereafter, requested an extension of time to file its decision, which was granted by the parties.
II
LOT 4 AND "THE LAWN"
Plaintiffs James and Erin McBurney are the owners of 2 Crescent Bluff Avenue in Branford. That property is identified as lot 4 on a Plan of 35 Building Lots belonging to Ellis B. Baker, Trustee, located at Pine Orchard, Branford, Conn., surveyed by J. Ed. Judson, 1885. In 1885, a five-acre tract of land was conveyed to Baker, Trustee by a deed bounding it north on a highway and "south by the sea or Long Island Sound." A copy of the "Plan" has been entered into evidence. The Connecticut Supreme Court in Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903), a decision which dealt with a dispute similar to the present one and involved the same Crescent Bluff development and the "1885 Baker Plan," described Crescent Bluff. "The plan so filed showed that the tract of land was a long and narrow strip of upland about 220 feet in width, laid out into lots of nearly equal size on each side of an open space marked Avenue leading from the highway to an open space on which the four southerly lots (lots 2, 4, 1, and 3) faced, marked Lawn. The southerly boundary of the "lawn" was an irregular line substantially parallel to and some 40 feet distant from a line below which was marked Long Island Sound. Id. at 297. "Each lot was numbered. Those facing the lawn on the west side of the Avenue were numbered 2 and 4, lot 4 being the lot next to it. Lots 3 and 1 were on the other side of the Avenue, lot 3 being next to it. Lots 1 and 2 at that time were only accessible by going over the lawn." Id. Although the boundary line indicated on the plan included nothing south of the 35 building lots, the reference to the plan was made to explain the arrangement of the lots, and not to limit the area of the land conveyed. Id. The lawn was a level, grassy piece of upland, not over 56 feet in depth at any point, terminating in a slope leading down to the CT Page 10878-gi beach, which was some 20 feet below. Prior to July 1982, a wooden bulkhead had been built to protect the slope leading down to the beach and on top of the bulkhead was a boardwalk. This boardwalk was used by the general public. Id. at 298. In 1893 due to storm damage, this bulkhead was rebuilt. Shortly before January 1903, this second bulkhead became dilapidated and it became necessary to replace it by a new embankment. Up to that time the owners of lots 2, 4, 3 and 1, the shorefront lots, had always taken care of the lawns and made the necessary repairs to the bulkhead. Id. In 1903, one owner of a shore front lot, Frederick Ley, began without consulting other lot owners, to construct a granite wall to replace the wooden bulkhead. Louis A. Fisk, the owner of an interior lot on the "Avenue" objected to the new line and design of the wall claiming that the shore front lot owners were attempting to increase the extent of the "lawn" thus gaining a benefit for themselves. The new design of the lawn, which would increase the sloped area, would make use of the "lawn" less convenient for the owners of the rear interior lots who had grown accustomed to sitting on their chairs on the "lawn." Id. at 299. Fisk filed suit against Ley requesting injunctive relief to halt construction of the new granite wall. The relief was granted by the trial court and the defendant appealed to the Connecticut Supreme Court, which handed down its decision in Fisk v. Ley, supra, 76 Conn. 295.
A copy of "1885 Plan of 35 Building Lots" is included in the Appendix attached hereto.
The court in Fisk v. Ley, supra, upheld the trial court's ruling that the filing of the Baker 1885 Plan in the town clerk's office and the conveyances referring to it, annexed to each of the lots a right to use the "Avenue" and the "lawn," and to go over them to Long Island Sound. Id. at 300. The ruling did not limit the use of the "Avenue" and the "lawn" to just passing and re-passing on the way to the beach. The court stated, "The tastes and pleasures of those who pass the heat of summer at a seaside cottage naturally vary. To one, sitting quietly on a shady lawn and enjoying the prospect may be the greatest attraction, while another will make more use of the beach and water." Id. at 300.
The injunctive relief granted by the Fisk trial court and affirmed by the Supreme Court was against "substantially changing the extent and character of the beach and the shore of the beach in front of said lawn, or of the grade of said lawn and said avenue . . ." Id. at 303. While not prohibiting the construction of the new wall, the court stated that the new wall was allowable only if it did not change the grade of the lawn, and provided that such change " shall not substantially interfere with the use of the lawn by the plaintiff and the other lot owners." (Emphasis added.) Id.
In issuing its decision, however, the Supreme Court did not address the CT Page 10878-gj question of title ownership to the "Avenue" and the "Lawn" areas on the 1885 Baker Plan. Instead, the court adopted the trial court's reasoning "that it was of no consequence in whom the legal title to the "avenue," "lawn," and beach might be," since Fisk's right to injunctive relief did not depend upon such title, but rather depended on his ownership of one or more of the building lots. Id. at 301.
The plaintiffs' lot adjoins an area on said Plan designated to the south as "lawn" and faces the water. The plaintiffs' property also abuts the "Avenue." The defendants are owners of lots also shown on the "Plan." However, the defendants' lots are rear lots along Crescent Bluff Avenue. Their lots do not abut the "lawn," that runs across four shore front lots, those being lots 4 and 2, as well as, lots 1 and 3. The interior rear lots are not waterfront lots.
The relevant claims to the chain of title to the McBurneys' property, which is also known as 2 Crescent Bluff Avenue, are as follows. The court finds that on September 30, 1950 John Moran conveyed in fee lot 4, and a 10-foot strip of the original lawn area south of lot 4, to Margaret Walker. On October 14, 1970, Mrs. Walker conveyed the property to her daughter, Judith Millerick. Mrs. Millerick conveyed it to her husband, Joseph Millerick, on October 19, 1981, who in turn sold it to William Craig on July 17, 1990. After William Craig conveyed a half interest in the property to his wife, Mr. and Mrs. Craig by Warranty Deed dated, September 16, 1997 sold lot 4, and the 10 feet to the south of it, to the plaintiffs, James and Erin McBurney.
The 10 feet south of lot 4, together with the remaining property between it and Long Island Sound constitute the "Lawn" at issue in this case. The plaintiffs claim exclusive rights in that Lawn property in two distinct ways. First, although John Moran did not convey to Mrs. Walker a fee ownership of the property between the 10 feet south of lot 4 and Long Island Sound, the Moran/Walker deed in 1950, did state the following, which the plaintiffs claim is a transfer.
A copy of the Moran to Walker deed is included in the Appendix attached hereto.
a permanent right of way over said Lawn between the land herein conveyed and high water mark, in common with the grantor and others to whom a similar right has been or may be conveyed. Also the right to use said lawn as a lawn for all purposes in common with the grantor and such others to whom said grantor may or shall grant a similar right.
Accordingly, the plaintiffs argue, they succeeded to rights in that property enjoyed only by the grantor, John Moran, and others to whom he specifically might grant similar rights. CT Page 10878-gk
Subsequently, the Estate of John Moran was reopened under a claim that it owned the disputed lawn area in front of lot 4 down to the water, and thereafter, conveyed the remaining fee, "the lawn," in front of lot 4 on the plan, to Roger Lowlicht and Kay Haedicke, the owners of lots 2 and 6 on May 1, 1998 by way of a "Fiduciary's Deed" for the sum of $1.00. Said lawn area is more particularly described on a map entitled "Property Survey, Land of William E. Susan H. Craig, 2 Crescent Bluff Avenue, Pine Orchard, Branford, Connecticut" by LWF Land Surveying. This map is dated July 1997 and revised September 8, 1997. The metes and bounds of the lawn area conveyed by said "Fiduciary's Deed" are described on a Schedule A attached to said deed. Shortly, thereafter, Lowlicht and Haedicke, by way of a quitclaim deed and for the price of $1.00, transferred this lawn area in front of lot 4 to the plaintiffs, using the same metes and bounds description. These transfers of the lawn in front of lot 4, first to Lowlicht and Haedicke and then to the plaintiffs, triggered events that resulted in the present litigation.
A copy of the Administrator's Deed to Lowlicht and Haedicke is included in the Appendix attached hereto.
A copy of the deed from Lowlicht and Haedicke to the plaintiffs McBurney is included in the Appendix attached hereto.
The plaintiffs argue that they now currently own not only Lot 4, but also the lawn area to the high water mark of Long Island Sound in fee simple. They have brought these actions against the defendants seeking to have them declared "trespassers" for crossing the lawn area to reach the beach area and for recreating on the lawn area. As previously stated, each of the defendants are owners of interior lots, which run along and front Crescent Bluff Avenue and are not waterfront lots. These interior lots, as well as the four waterfront lots 2 and 4 and lots 1 and 3, are shown on the Baker Plan of 1885 which was filed in the Branford Town Clerk's Office. The plaintiffs seek injunctive relief to prevent this behavior by the defendants in the future and a determination of the present property rights.
III FINDINGS OF PACT A.
The Crescent Bluff Neighborhood
The Crescent Bluff neighborhood has its origins in a Plan of 35 Building Lots belonging to Ellis B. Baker, Trustee, located at Pine Orchard, Branford, Conn., and surveyed by J. Ed. Judson, 1885 ("The Plan"). The Plan, filed on the Town of Branford land records, shows the location of 35 building lots intersected by an "Avenue." The Plan shows none of the lots continuing down to the water of Long Island Sound, including the plaintiffs' lot 4 and the Lowlicht-Haedicke lot 2. Rather, lots 1 through 4 face the Sound, but are bordered in front by a piece of property demarcated "Lawn." CT Page 10878-gl
In addition to Lot 2, Lowlicht and Haedicke also own lot 6 which adjoins lot 2. Lot 6 is a rear lot adjoining Lot 2.
Throughout the years both before and after the decision in Fisk v. Ley, supra 76 Conn. 295, and after the commencement of the present litigation, the residents of the Crescent Bluff neighborhood, defendants among them, have crossed the lawns in front of lots 4 and 2 to facilitate passage to the seawall walkway and the limited beach area below. They came to the end of Crescent Bluff Avenue, onto the "Avenue lawn" area at the end of Crescent Bluff Avenue, turned right and proceeded to cross the lawn in front of lots 4 and 2. They would then proceed across the lawn and down the slope of the lawn to the bulkhead and later, the concrete wall and seawall walkway, to the water. They came, as well, to the end of Crescent Bluff Avenue onto the "Avenue" lawn and turned left to cross the lawn area in front of waterfront lots 1 and 3 to access the stone rip rap or to continue on to an empty lot outside the boundaries of the Crescent Bluff "Plan," where they could play ball or enjoy other various recreational activities.
Crescent Bluff Avenue was formerly designated as Maple Avenue.
In earlier years, the only stairs to the water were stairs accessible by crossing the lawn in front of lots 4 and 2. Subsequently, the Pine Orchard Association would install temporary seasonal wooden stairs at an area accessible from the "Avenue" area shown on the "1885 Plan," for the use of all Crescent Bluff residents, including the rear lot residents, who lived along Crescent Bluff Avenue. These stairs, being of a temporary nature, were removed when the outdoor season was over, and were re-installed the following year. When using these stairs, to the pedestrian's left was rock rip-rap; to the right was the seawall, upon which there was a walk, where residents would often stroll.
The concrete ramp, now running along the slope area of the "lawn" existing between the boundaries of Lots 4 and 2, and Long Island Sound came about because of the destruction of the seawall caused by the hurricane of 1938. The following summer in 1939, John Moran who owned Lot 4, rebuilt this frontage with a slab of bright green concrete and the seawall containing a walkway on its top. The remainder of the frontage, which ran across the bottom of the lawn area in front of lots 1 and 3 was done with granite stone rip-rap and the filling in of the bank. The concrete slab, the seawall and the walk on top of the seawall extended only across the areas fronting lots 2 and 4. Because the hurricane took out the only stairs to the walkway at the top of the seawall, people would cross the lawn area fronting lots 4 and 2, to go down the concrete slab to access the walk at the seawall and the water. Residents of the Crescent Bluff rear lots, along with their friends and guests continually used this path across the lawn area to get to the concrete ramp that Moran constructed and which remains to this day. Pedestrians would slowly descend the slope of the ramp to get to the seawall walkway and children CT Page 10878-gm would, at their seemingly great peril, even descend the ramp on their bicycles. Moran had also installed a metal stairway on the concrete ramp with a railing, and some residents would use this, rather than hazard walking down the concrete surface in a diagonal direction, until the stairs and their railing deteriorated. Moran died in July 1951, owning lots 2 and 6. One year prior to his death he had sold lot 4. Whether or not he owned the lawn areas to the south of these lots is part of this dispute.
During the warmer months, residents and children would sit and gather on the grassy lawn area at the top of the ramp to converse, view the water, enjoy the sunsets, and in general, carry on social activity. Others would cross the lawn area in front of Lots 4 and 2 and proceed to an adjoining lot where a stairway led directly to the water. This adjoining lot was not part of Crescent Bluff and is not depicted on the "1885 Baker Plan," but was next door to lot 2. From there residents would sunbathe on the rocks or play in the pools of seawater that gathered among these rocks. They were not prevented from crossing and re-crossing the lawn in front of lots 4, and 2, until 1996. Except for a few infrequent occasions, they were never asked to leave the lawn area or the concrete ramp constructed by Moran in 1939 until after the erection of a fence on Thanksgiving Day, 1996, by Roger Lowlicht and his wife Kay Haedicke, the owners of lot 2. This fence, which runs across the lawn area in front of their lot 2 and also lot 4 prevents access from the lawn areas across lots 4 and 2, to the concrete ramp, the seawall and the seawall walkway.
Subsequently, the plaintiffs, following their purchase of lot 4 from Mr. and Mrs. Craig, joined in the objections of Lowlicht and Haedicke, to the rear lot owners' use of the lawn and concrete slope areas and also sought to bar these residents from the lawn area by complaints to the local police. The defendants, nonetheless, continued to assert a right to use the lawn area for several years, thereafter, despite the institution of the subject legal actions by the plaintiffs McBurney. However, due to the legal actions by the plaintiffs and the plaintiffs' installation of security cameras and security lighting, the defendants have lessened their activities pending the determination of the rights of all parties by the court.
B.
The Dispute
The erection of the fence by Lowlicht and Haedicke the owners of lots 2 and 6 on Thanksgiving Day, 1996, and the subsequent attempts by CT Page 10878-gn Lowlicht, Haedicke and the plaintiffs to bar the defendants from the lawn area were preceded by the execution of a "Property Agreement" which was signed by several lot owners of the Crescent Bluff neighborhood, including defendants Baldwin and Cirillo in September 1996.
Lowlicht, and William Craig the plaintiffs' predecessor in lot 4, were both aware m the Spring and Summer of 1996, that residents crossed the lawn area in front of the four waterfront lots on a regular basis; that the residents had been doing so for many years; and that these residents used lots 4 and 2 to access the concrete ramp and the seawall. By 1996, the metal stairs on the ramp, which had been installed by Moran in approximately 1939, had become unsafe and had been removed, though small remnants of these stairs remain. Therefore, no stairs at any location remained for residents to gain access to the water and the seawall, other than temporary seasonal stairs provided by the Pine Orchard Association.
Once again, the seawall was in need of repairs. Historically, all previous repairs to the original wooden bulkhead by prior waterfront lot owners and the subsequent erection of the present granite wall by Moran had been done at no cost to the interior rear lot owners. Lowlicht had some belief that he owned the lawn area in front of lot 2 to the water and wanted to enlist Craig to share the costs of repairing the wall and the construction of a new set of concrete stairs at the end of the "Avenue lawn" extension. He also wanted the Pine Orchard Association to pay a portion of the costs attributable to the stair construction.
On August 26, 1996, Lowlicht represented to the Pine Orchard Association that he did not want to pay for the construction of new steps at the end of the "avenue lawn extension" for property he did not own. He wanted the Association to pay for the entire set of concrete steps. He also represented to the Association that he could find no record of ownership of any of the common lawn areas and that, in fact, the Town of Branford was not taxing these areas to any individual lot owners. Lowlicht stated at trial he didn't remember making this statement, but the August 26, 1996, minutes of the Pine Orchard Association which are a trial exhibit confirm that he did.
The Association subsequently agreed to pay for the construction of a lower tier of steps to the water at the end of the avenue extension, but declined to pay for a first level of steps from the lawn at the end of the "Avenue" to a lower tier of steps, which were to begin at the seawall level. Despite his belief that his lot 2 included title to the lawn area to Long Island Sound, Lowlicht was unsure, as is evidenced by his hiring of Lawrence Fisher to conduct a survey and title examination of lots 2, 6 and 4 in 1997. CT Page 10878-go
Craig, an attorney, did not believe that he and his wife had any ownership rights as to the "lawn" in front of and directly to the south of his lot 4, other than a small 10-foot strip of the "lawn" which had been added to lot 4, many years earlier. Craig believed the rear lot residents had prescriptive easement rights and other possible rights in the disputed lawn area running across all four waterfront lots. Craig also had the Branford Tax Assessor designate lot 4 as waterview rather than waterfront property.
Craig was reluctant to pay for seawall repairs and step construction, so long as interior rear lot owners had possible rights to the lawn area in front of lots 2 and 4. Therefore, Lowlicht and Craig embarked upon a plan, wherein, at their sole expense, they would offer to repair the seawall and construct a new concrete staircase at the end of the "avenue" lawn extension for the interior lot residents to use for access to the seawall and the seawall walkway. They agreed to do this on a one-time basis, if rear lot owners would release and quitclaim to the owners, successors and assigns of lots 4 and 2, all their right, title and interest in and to the lawns at lots 4 and 2. These rights included the rights to use or pass over the lawn in front of lots 4 and 2 to access the concrete ramp and the seawall walkway. The rear lot owners by signing this agreement would retain, however, the right to use the seawall walkway, as long as they did not access the walkway by crossing the lawns at lots 4 and 2.
Both Lowlicht and Craig were in agreement that in order to solidify any claim of ownership rights that they may have in the lawn, they had to prevent the rear lot owners from exercising any rights that these owners had to the common lawn areas either by way of an easement or otherwise. However, Attorney Craig, who drafted the Property Agreement did not conduct any title searches of the lots or lawn areas prior to drafting the agreement. At the time the Property Agreement was being drafted by Craig in the summer of 1996, neither Lowlicht or Craig had any knowledge of Fisk v. Ley, supra, 76 Conn. 295, which gave all lot owners shown on the Baker 1885 "Crescent Bluff Plan" an implied easement to use the areas marked as "lawn."
In early September 1996, the Cirillo and Baldwin defendants, as well as several other lot owners at Crescent Bluff, signed the "Property Agreement" with Lowlicht and Craig. Defendants Verderame and Paquin, as well as, many other non-party lot owners, did not sign the agreement. The agreement was recorded on the Town of Branford Land Records on January 20, 1999, twenty-eight months after its signing. Neither Lowlicht nor Craig could remember who had the agreement recorded. Lowlicht stated that CT Page 10878-gp he did not seek any legal advice or counsel subsequent to the signing of the agreement or prior to its recording. However, Lowlicht was notified of Fisk v. Ley, supra, 76 Conn. 295, in June 1997, by Lawrence Fisher, who Lowlicht hired to survey and do a title investigation of the lots and lawn areas. Lowlicht admitted that after learning about Fisk v. Ley, supra, from Fisher, he knew that it "might impact on the situation." Lowlicht also admitted he never informed Craig of Fisk v. Ley, supra, although he and Craig had discussions about various topics in the summer of 1997, and even though Lowlicht was aware, that Craig was in the process of selling lot 4. Craig did not become aware of Fisher's report and the existence of Fisk v. Ley, supra, until mid-1998, approximately nine months after he had sold lot 4 to the plaintiffs.
Despite having failed to gain the signatures of many rear lot owners on the Property Agreement, Lowlicht and Craig arranged for the wall repairs and the construction of the new steps at the end of the "avenue" lawn area. The wall repairs and construction of the steps by Lowlicht and Craig were not contingent on residents signing the Property Agreement, which Lowlicht has admitted. Construction began shortly after Labor Day, 1996, and was completed in a short period of time. Lowlicht, Craig and the Pine Orchard Association shared the costs of constuction. Craig paid approximately $7,000. Lowlicht paid approximately $9,000 and the Pine Orchard Association's cost was approximately $6,000.
Thereafter, in early October 1996, a group of interior rear lot owners, including the defendants Baldwins, Cirillos and Verderames, went to Craig and Lowlicht and demanded that the signed Property Agreement be rescinded. Craig told the residents that he didn't have possession of the agreement. Lowlicht could not recall whether he told them he did not have the agreement or whether he refused to give it to them. The court finds that Lowlicht was in possession of the agreement copy at that time. The defendants, including those defendants who didn't sign the agreement, claimed that Lowlicht had verbally assured them that nothing would change, and that in fact, they had been misled into signing the agreement because they now believed that Lowlicht and Craig were asserting ownership rights over the lawns fronting lots 2 and 4. Lowlicht denies he told residents that "nothing would change" because in his mind "things were going to change." Lowlicht, however, could not recall the specific substance of any conversations he had with the defendants when requesting that they sign the agreement. He admitted that he did not discuss the contents of the agreement with either Frank Cirillo or Jay Baldwin who signed the agreement. Lowlicht admitted he only knew "the general purpose of the agreement." Lowlicht was evasive in his responses regarding this subject matter. Much of his testimony throughout the trial has been less than credible. Craig, the drafter of the agreement, spoke to no one other CT Page 10878-gq than Lowlicht about the contents or the intent of the agreement nor did he actively seek the signatures of rear lot owners. In December 1996, the defendants presented Lowlicht with a letter, demanding the rescission of the agreement, but they were refused by Lowlicht, once again.
None of the defendants who signed the agreement were aware of Fisk v. Ley, supra, 76 Conn. 295, in September 1996, and neither were Lowlicht and Craig. Lowlicht has admitted that he would have proceeded in the same manner, even if he had known about Fisk v. Ley, supra. All of the defendants and Lowlicht and Craig themselves, were unsure of the extent of their individual rights in the lawn area. However, all assumed that every interior rear lot owner had, at the very least, some rights, if only a right to cross and re-cross the lawns in front of lots 4 and 2, as well as lots 1 and 3 and the "Avenue" lawn extension.
As stated above, despite the fact lot owners were not required to sign the Property Agreement and many did not, Lowlicht constructed a fence on Thanksgiving Day, 1996, across the lawn fronting lots 4 and 2 where the grassy portion of the lawn area abuts the top of the concrete slope, which had been erected by Moran in 1939. This fence barred access to the concrete slope by way of passing over the lawn at lots 4 and 2. Lowlicht admitted he began planning for this fence in June or July 1996, prior to the drafting and signing of the property agreement. He was aware that he was going to proceed with the wall repairs, the erection of the new concrete steps and the fence, whether any lot owners signed the property agreement or not. There had been no requirement by Lowlicht and Craig that any lot owners or a minimum number of lot owners sign the agreement prior to the commencement of the seawall and steps construction. Neither Lowlicht nor Craig had disclosed to the rear lot property owners that Lowlicht was going to erect the fence, though the court finds that this was clearly planned by Lowlicht.
Lowlicht testified at trial that since the erection of the fence in November 1996, he has not had any problem with persons trespassing on the lawn area of his lot 2, despite evidence otherwise. He acknowledged that residents do use the disputed lawn directly to the south of the plaintiff's property, as lot 4 is directly accessible from the "avenue" lawn extension. Again, Lowlicht's credibility is questionable.
The defendants asked the court during the presentation of evidence to take judicial notice of the file Verderame et al. v. McBurney et al., Docket No. CV 01 0453999, in which Lowlicht and his wife Haedicke are defendants. Verderame et al. v. McBurney et al., is a companion case, which awaits a jury trial. The plaintiffs in that case are the defendants CT Page 10878-gr in the present case. The defendants in that case are James and Erin McBurney, the present plaintiffs and Lowlicht and Haedicke. In Verderame et al. v. McBurney et al., the plaintiffs are seeking to enjoin the McBurneys and Lowlicht and Haedicke from preventing their use of the lawn areas, as well as other relief including monetary damages. The court has taken judicial notice of the pleadings in that case. "Whether to take judicial notice of a fact is a function of the exercise of judicial discretion." West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264, 588 A.2d 1368 (1991); DeLuca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611 (1919); C. Tait J. LaPlante, Connecticut Evidence (2d Ed. 1988) 6.1.3, p. 119; 1 B. Holden J. Daly, Connecticut Evidence (2d Ed. 1988) 22. Pie Plate, Inc. v. Texaco, Inc., 35 Conn. App. 305, 315, 645 A.2d 1044 (1994) "There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties." Karp v. Urban Development Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972); Guerriero v. Golasso, 144 Conn. 600, 605, 136 A.2d 497 (1957). "[I]t is understood that matter[s] which it is claimed the court should judicially notice should ordinarily be called to its attention by a party seeking to take advantage of it in the course of presenting evidence in the case so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so . . ." Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591 (1940). Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 509, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1988).
By way of a counterclaim filed by Lowlicht and Haedicke in Verderame et al. v. McBurney et al., it is alleged that the plaintiffs, (who are defendants in the present case) "have unlawfully without license entered onto the land of the defendants (Lowlicht and Haedicke) and have interfered with defendants' use and enjoyment of said land and the plaintiffs have stated their intention to do so in the future." The statements made by Lowlicht and Haedicke in this counterclaim directly contradict Lowlicht's trial testimony that he does not have a problem with the present defendants passing and re-passing or recreating on lot 2.
C.
Sale of Lot 4 to the Plaintiffs
In the spring of 1997, Lowlicht hired Lawrence Fisher to do survey and title investigation work regarding his lot 2 and also, lot 4. Fisher proceeded and in doing so, he discovered the existence of the Connecticut Supreme Court's decision in Fisk v. Ley, supra, 76 Conn. 295. Fisher CT Page 10878-gs informed Lowlicht of the Fisk v. Ley, supra, decision in June 1997. At the same approximate time this was occurring, Craig had placed his home on lot 4 for sale, but neither Lowlicht or Fisher informed Craig of Fisk v. Ley, supra, at this time. Fisher, while verbally informing Lowlicht of Fisk v. Ley, supra, admits that he chose to omit the decision in his written report to Lowlicht. Fisher admitted that Fisk v. Ley, supra, was evidence of rights by interior lot owners, but stated that he chose not to follow it. He believed that any implied easement was no longer in effect, due to the results of his title searching activities and the 40-year limitation of the Marketable Record Title Act. He advised Lowlicht to seek the advice of legal counsel. Fisher also did not certify title to the lawn area in front of lot 2 as belonging to Lowlicht and his wife Haedicke. He termed his report a title "investigation." He provided Lowlicht and Haedicke with a new survey map for recording, which contained no reference to Fisk v. Ley, supra or rights, if any, of the rear lot owners to use the common lawn areas shown on the "1885 Baker Plan."
In early July 1997, Craig and his wife entered into a contract with the plaintiffs to sell them lot 4 (2 Crescent Bluff Avenue) for the price of $675,000. Approximately two weeks later, the contract was terminated because the plaintiffs' attorney notified the plaintiffs of title problems with lot 4, in that lot 4 did not own the lawn area to the south, which extended to the high water mark of Long Island Sound and included a portion of the concrete slope, the seawall and the seawall walkway. The plaintiffs also learned at this time that Lowlicht's porch steps and a fence were encroaching on lot 4's boundaries.
After negotiations between the plaintiffs' attorney and Michael Sulzbach, the attorney for Lowlicht and his wife Haedicke, the plaintiffs made a second offer to Craig to buy lot 4 in August 1997, for a reduced price of $630,000 because of the title problems. Neither Lowlicht nor Attorney Sulzbach informed the plaintiffs of Fisk v. Ley, the disputed Property Agreement or the neighborhood controversy that had erupted over the fence and access to the disputed "lawn" areas. The plaintiffs were informed that Attorney Sulzbach and his client Lowlicht were in the process of resolving problems regarding Lowlicht's encroachments on lot 4, as well as, the lawn area title problem. The closing of title to lot 4 between the plaintiffs and the Craigs occurred on or about September 17, 1997. The deed received by the plaintiffs did not include fee rights to the lawn area in front of lot 4. The plaintiffs were informed by their own attorney at that time, that as to the lawn area in front of lot 4, they were receiving only the same 10-foot strip of lawn that their predecessors in title had received dating back to the deed Moran gave to Walker in 1950. The plaintiffs, however, were assured that the lawn CT Page 10878-gt problem would be rectified in the Probate Court.
A copy of the deed from William B. and Susan H. Craig to James R.G. McBurney and Erin E. McBurney, dated September 16, 1997 is included in the Appendix, attached hereto.
From September 1997, until the early summer, 1998, rear lot owners continued to cross lot 4 to access the seawall walkway and the water. However, in June 1998, when the plaintiffs began their summer residence at lot 4, they began having confrontations with various lot owners and residents, including defendants Cirillos and Mrs. Verderame, regarding use of the lawn area for recreational purposes, including but not limited to, sitting in lawn chairs on the lawn area in front of lot 4. When asked to leave by the plaintiffs, the defendants refused to do so, stating they had a right to be there. This continued throughout the summer and resulted in calls to the police by the plaintiffs and the defendants. These confrontations continued into 2001, as the plaintiffs attempted to assert ownership rights of the lawn area to the exclusion of the interior rear lot owners.
In September 1997, immediately after their purchase of lot 4, the plaintiffs began to consult with the Lowlichts and Lowlicht's attorney, Michael Sulzbach, to continue work on acquiring title to the lawn area in front of lot 4 from the Estate of John Moran. In the spring of 1998, the plaintiffs met Fisher, Lowlicht's surveyor. Fisher in May 1998, informed the plaintiffs of the existence of Fisk v. Ley, supra. This was when plaintiffs first discovered that Lowlicht had known about Fisk v. Ley since June 1997.
D.
The Probate Court Proceedings
On May 1, 1998, by order of the New Haven Probate Court, the Estate of John Moran conveyed title to the disputed lawn area directly south of lot 4 to Lowlicht and Haedicke for $1 by way of a Fiduciary's Deed. Lowlicht and Haedicke, thereafter, on May 18, 1998, conveyed the property to the plaintiffs for $1, by way of quitclaim deed.
John Moran, the former owner of Lowlicht and Haedicke's lots 2 and 6 and the plaintiffs' lot 4, died on June 17, 1951. His estate was probated in the New Haven Probate District and was closed approximately 9 to 10 years later. At the time of his death he possessed a "record interest" in the land which has been referred to as the lawn area in front and to the south of the plaintiffs' lot 4. This lawn area is described in metes and bounds on Schedule A of the Fiduciary's Deed to Lowlicht and Haedicke and the quitclaim deed from Lowlicht and Haedicke to the plaintiffs as the "Second Piece." CT Page 10878-gu
By Will admitted to probate, any interest Moran had in this lawn parcel was among the corpus of property devised to trustees of two testamentary trusts described as Trust A and Trust B. The remaindermen and ultimate beneficiaries of Trust B were largely Catholic charities, schools and the like. The Estate of Moran was closed without Moran's interest in this lawn parcel area south of lot 4, having been conveyed, although it had been inventoried by his estate as a separate parcel of land, valued in 1952 at $18,000.
A copy of the Last Will and Testament of John Moran, dated December 28, 1950 is included in the Appendix, attached hereto.
On October 27, 1997, Thomas Kelley, Jr. of Torrington, Connecticut, a nephew of John Moran, filed a Motion to Reopen the Estate of Moran seeking permission to convey real property, in the Probate Court, District of New Haven (hereinafter "Motion to Reopen"). The real property which was the subject of this motion was the lawn area in front of lot 4. The motion was drafted by Attorney Sulzbach, who filed an appearance as Kelley's attorney. Sulzbach, at this same time was also representing the interests of Lowlicht, his wife Haedicke and the plaintiffs. It is unclear that the Probate Court had a clear understanding of Sulzbach's representation of Lowlicht, Haedicke and the plaintiffs' interests at the same time Sulzbach was representing Kelley, or that, in fact, the plaintiffs were the real parties in interest. Sulzbach, as well, was aware of the Supreme Court's holding in Fisk v. Ley, supra, but chose not bring the decision to the attention of the probate judge.
In the motion to reopen, Kelley, who was 81 years old, requested the court to reopen the estate of John Moran, his uncle, who died on June 17, 1951. The stated purpose of the motion to reopen was to sell the interest in a certain parcel of real estate to Roger Lowlicht and Kay Haedicke. According to petitioner Kelly, the decedent's estate "inadvertently" omitted to convey "the fee" to the lawn area in front of and directly to the south of lot 4, when the estate sold lots 2 and 6. As mentioned, this parcel had been inventoried by the estate at the time of Moran's death as a separate real estate parcel and not as part of Lots 2 and 6. Lot 4 had been sold by Moran to Margaret Walker in 1950, prior to his death, and therefore, was not an asset of the estate. Moran continued to own lots 2 and 6 and upon his death, thus, those lots were included in his estate and were sold to Richards.
Attorney Sulzbach had not reviewed the Last Will and Testament of Moran to discover who the testamentary heirs were, or the terms of the Will. The Probate Court, as well, never examined the terms of the Will. The petitioner Kelley alleged in the application that the executors under John Moran's Will, Harold C.V. Eagan and Stephen Madigan, were deceased. He represented that copies of the Motion to Reopen had been mailed to the other surviving heirs at law, in addition to himself, as follows: Joan CT Page 10878-gv T. Kelley, Edward C. Kelley, Katherine Sullivan, and Josephine Murphy. The probate court ordered notice of a hearing on said motion, by mail, to these heirs. However, contrary to these allegations, in addition to Harold C.V. Eagan and Stephen Madigan, the Will of Moran named the Union and New Haven Trust Co. as executor, as well as any institution resulting from its reorganization, consolidation or merger with another bank as executor or successor executor. The Union and New Haven Trust Co., existed in 1997, as the First Union National Bank.
Defendants requested that the court take judicial notice of the bank history cards of the State of Connecticut, Department of Banking, which show the history of the Union and New Haven Trust Co., which existed as of 1997 as the First Union National Bank.
In his Will, John Moran also devised and bequeathed property to twelve charities. Only four of these charitable beneficiaries are located in the State of Connecticut: Diocesan Bureau of Social Service in Bloomfield; Albertus Magnus College in New Haven; Dominican Nuns of North Guilford in North Guilford; and St. Mary's Academy in New Haven. In addition to the heirs to whom the petitioner sent copies of the Motion to Reopen, there are other nieces and nephews who were also beneficiaries pursuant to the exercise of a power of appointment by John Moran's wife, Agnes. They include: Elizabeth Fisher of New Milford, Margaret Keegan of Torrington and John Kelley of Torrington, (hereinafter "certain heirs"). On October 31, 1997, the probate court mailed a Notice of Hearing regarding the Motion to Reopen to the heirs listed in the motion, as well as Attorney Sulzbach. The hearing on the motion was scheduled for November 18, 1997. None of the other parties listed in the will of Moran as heirs, beneficiaries or Executor were sent any notice.
On March 12, 1998, without written application or notice to anyone, the probate court appointed Attorney Sulzbach as administrator, d.b.n. c.t.a., of the Estate of John Moran, deceased, giving him the authority to take steps necessary to transfer certain real property in the estate in accordance with the application on file. There was no motion filed to remove the First Union National Bank as Executor. There was no hearing held to remove the Executor, and the Executor, nor anyone else, was notified of the appointment of Sulzbach as Administrator, d.b.n, c.t.a.
On March 16, 1998, Attorney Sulzbach filed an Application to Sell or Mortgage Real Property. In this application, Attorney Sulzbach represented that it would be in the best interests of the parties in interest to privately sell the above-mentioned parcel of beachfront real property to Roger Lowlicht and Kay Haedicke at a proposed price of $1.00. Lowlicht and Haedicke had purchased Lots 2 and 6 from Flaherty, who purchased these lots from Richards, who in 1952, had purchased these lots from the Estate of Moran. Sulzbach represented that the sale was not prohibited by the will or trust. The Application to Sell form also required that the fiduciary, Sulzbach, state in writing whether he had a potential conflict of interest in the sale. Sulzbach did not indicate CT Page 10878-gw whether or not he had a conflict even though the form application required him to do so. It does not appear that he verbally informed the probate judge of his private representation of Lowlicht, Haedicke and the plaintiffs at the same time he was to be representing the best interests of the estate and the remaindermen, heirs and beneficiaries of said estate.
The Probate Court judge testified at trial that he inquired of Sulzbach if any dispute existed regarding this property and Sulzbach informed him that he had no knowledge of any disputes between the owners of lots 2 and 6 and lot 4, which were Lowlicht, Haedicke and the McBurneys. He did not inform the judge of the ongoing neighborhood dispute, or the holding in Fisk v. Ley, supra, 76 Conn. 295. The Probate Court judge, without reviewing the court's own file, the estate record or the Will of Moran, relied solely upon Sulzbach's representation that this parcel of land, being the lawn area in front of lot 4, was inadvertently left out of the original probating of Moran's estate, and should be conveyed to Lowlicht and Haedicke. It is unclear whether the probate judge was aware that upon sale to Lowlicht and Haedicke for $1.00, the parcel would be immediately conveyed to the plaintiffs.
A hearing on Attorney Sulzbach's Application to Sell was scheduled for April 9, 1998. Notice of the hearing was mailed pursuant to order of the probate court to Attorney Sulzbach and only the heirs listed in the Motion to Reopen. The Order of Notice and Return, dated March 20, 1998, stated that the notice was to be given on or before April 1, 1998. A notice of the hearing on this application was also ordered to be placed in the New Haven Register's Legal Notices, one time, for approximately one week, prior to the April 9, 1998 hearing. At the April 9, 1998 hearing, the probate court granted the Application to Sell and entered a decree for sale of the real property to Lowlicht and Haedicke for the sum of $1.00. The property was sold to them on May 1, 1998. On May 18, 1998, Roger Lowlicht and Kay Haedicke quitclaimed this parcel, being the lawn in front of lot 4, to the plaintiffs James and Erin McBurney for $1.00.
Subsequently, the fiduciary, Attorney Sulzbach, filed a Return of Sale and an accounting on March 20, 2000, twenty-two months after the sale. The final account filed by Sulzbach does not reveal who paid the expenses of the re-opened probate procedure, nor does it list what expenses were incurred. The final account was scheduled for a hearing on April 10, 2000. The probate court mailed notice of this hearing to the heirs listed in the Motion to Reopen. The court approved the final account by decree dated April 10, 2000. However, the court takes judicial notice, that the probate proceedings in the New Haven Probate Court have since been reopened for the purposes of reviewing the sale of real estate to CT Page 10878-gx Lowlicht and Haedicke. While this information has come to the court after the close of evidence, it has been included in the reply brief of the defendants and has also, been the subject of written correspondence between counsel for the parties received by this court and a letter from the Probate Judge to this court.
IV A.
Fisk v. Ley and the Marketable Title Act
In 1903, the Connecticut Supreme Court in the case of Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903), considered a similar dispute regarding access to the beach and "the lawn" by the interior rear lot owners against owners of lots facing the water, as shown on the "1885 Baker Plan." Specifically, an interior rear lot owner, Fisk, claimed the owners of lots facing the water and abutting "the lawn" were improperly constructing a granite wall to replace a wooden bulkhead, and that said construction would adversely affect access rights of the interior lot owners to the beach and "the lawn" area shown on the "1885 Baker Plan." In holding for the interior lot owner Fisk, the court stated the following.
The real purpose, however, of the front lot owners in selecting the new line, was to increase the extent of the lawn and secure as large a measure of benefit for themselves as possible. For this purpose, they proposed, as part of their scheme of improvement, to change the level of the lawn; carrying back the top of the slope so as to make that occupy half the lawn, which would conform to the manner in which the adjoining ground on the east is graded. This would make the use of the lawn less convenient for the owners of the rear lots, who have been accustomed to bring out chairs and sit there.
Fisk v. Ley, supra, 76 Conn. 298-99 (emphasis added).
In adjudicating the claims in favor of the interior lot owner Fisk, the Court stated, that "[t]he filing of the plan in the town clerk's office, and the conveyances referring to it, annexed to every lot a right to the use of the avenue and lawn, to go over them to the sound, and to use the strip of beach between the foot of the bank and the water for all such purposes as might reasonably serve the convenience of an adjoining proprietor." Id. at 300; see also Pierce v. Roberts, 57 Conn. 31, 17 A. 275.
The Fisk court further stated in upholding the superior court's CT Page 10878-gy ruling granting an injunction and halting the construction of new wall:
The injunction granted was against substantially changing the extent and character of the beach and the shore of the beach in front of said lawn, or of the grade of said lawn and said avenue, and from erecting and maintaining a wall upon said shore and said beach in the location marked upon Exhibit 5 by the red line, and from continuing the erection of the wall upon said beach, or maintaining said wall in the location it now is and is being placed, provided that nothing herein shall be construed to prevent the erection of a sea wall along the line of the original, former wooden bulkhead nor from changing the grade of the lawn so as to make it uniform to the wall so erected along the original, former wooden bulkhead, provided such change shall not substantially interfere with the use of the lawn by the plaintiff and the other lot owners.
Id. at 303 (emphasis added) (internal quotation marks omitted).
The plaintiffs argue that notwithstanding the decision in Fisk v. Ley, supra, 76 Conn. 295, throughout the recorded history of Crescent Bluff, the lawn adjoining lot 4 was used only by the owner of that property, or those with his or her permission. The court finds otherwise.
The evidence and trial exhibits reviewed by this court includes numerous title investigation records, deed copies, photographs, maps and witness testimony, including the testimony of Lawrence Fisher. Fisher a surveyor, who also investigates land titles in conjunction with his survey work, established that John Moran, for many years, owned Lots 2, 6, and 4 shown on the "1885 Baker Plan." Plaintiffs contend that by 1914 Mr. Moran had acquired Lots 2 and 6 and a one-half interest in the "lawn directly south of Lot 2, and that in 1935, he acquired the other half interest in that "Lawn" directly south of lot 2 from Louis A. Fisk. The court agrees and finds that Moran, as of 1935, owned lots 2 and 6 and the lawn area directly south of lot 2 to Long Island Sound.
Moran received title to lots 2 and 6 by warranty deed on December 8, 1910. By way of quitclaim deeds dated May 6, 1914 and June 10, 1914 he received an additional one-half interest in the lawn area directly south of lot 2 from the Estate of Ralph Blackstone and his heirs. On September 21, 1935, Louis A. Fisk, by way of quitclaim deed conveyed the remaining portion of the same lawn to Moran, thereby perfecting Moran's title to the lawn area, directly south of lot 2, bounded southerly by Long Island Sound, subject to the implied easement declared by the Supreme Court in Fisk v. Ley, supra, in 1903. As noted, Moran died in 1951. CT Page 10878-hz
The plaintiffs additionally argue that Mr. Moran acquired Lot 4, and the lawn south of lot 4, to the water, in 1933. Moran did, in fact, by warranty deed from Augusta S. Joannes, J. Andre Smith and George M. Smith, dated September 13, 1933, receive title to lot 4 and that portion of the "Lawn" lying between lot 4 and the waters of Long Island Sound. That deed is recorded in Volume 96, Page 370 of the Branford Land Records. Moran's title to lot 4 to Long Island Sound was subject to the "1885 Baker Plan," which was filed in the Branford Town Clerk's Office on July 31, 1885 as Map 1. As such, it was also subject to the implied easement in favor of the interior rear lot owners, as declared in Fisk v. Ley, supra. Moran continued ownership of lot 4, which included the lawn area directly to the south and bordered by Long Island Sound, until 1950.
By way of warranty deed dated September 30, 1950, Moran conveyed to Margaret K. Walker, the original lot 4, as shown on the "1885 Baker Plan" and a 10-foot strip of the lawn, which had been previously added to the southerly side of the original lot 4 by way of warranty deed dated May 29, 1891, from E.B. Baker, Trustee to Hattie E. Fuller. Moran, however, did not convey his fee ownership of the remaining lawn area to the south of lot 4, bordered by Long Island Sound. Instead, he granted to Walker "a permanent right of way over said lawn between the land herein conveyed and high water mark, in common with the grantor and others to whom a similar right has been or may be conveyed," and "also the right to use said lawn as a lawn for all purposes in common with the grantor and such others whom said grantor may or shall grant similar right."
The plaintiffs contend that Moran during his ownership of lots 2 and 6 and lot 4 treated the lawn areas between Lots 2 and 4 and the walk at the top of the seawall at Long Island Sound as his exclusively, and that the people of Crescent Bluff recognized and respected that exclusivity. Defendants claim they have private rights or easements to use the Lawn in front of lot 4, the plaintiffs McBurney's property. They maintain those rights arise from the "1885 Baker Plan," and that these rights were affirmed by the Connecticut Supreme Court in Fisk v. Ley, supra, 76 Conn. 295. Fisk v. Ley stated the "1885 Baker Plan" annexed to every lot a right to the use of the avenue and "lawn." Id. at 300. The defendants also claim to have a prescriptive easement to pass and re-pass over the lawn areas fronting lots 1 and 3 and lots 2 and 4, and the "Avenue," as well as the right to recreate on those areas.
The court in analyzing the history of Crescent Bluff and the usage of the plaintiffs and the defendants in the lawn areas to the south of lots 2 and 4 and 1 and 3, and the "Avenue" extension is limited only to determining such rights, if any, the respective parties have in the lawn CT Page 10878-ha area directly south of lot 4 to Long Island Sound. While the evidence also includes various claims to ownership and easements over lot 2 and lots 1 and 3 and although the owners of these lots also gave testimony at trial, they are not parties to the actions which have been consolidated for the purposes of this trial. This court cannot adjudicate the rights of the defendants or those lot owners as to any use or ownership of the lawn areas as they regard lots 2 and lots 1 and 3.
The plaintiffs argue that to the extent Fisk v. Ley's "interpretation" of the "1885 Baker Plan" gave defendants rights or easements to use the lawn to the south of lot 4, those interests were extinguished by the Marketable Record Title Act, General Statutes §§ 47-33b to 47-33l and the history shown in the plaintiffs' chain of title. Additionally, the plaintiffs argue because they had no notice of any claimed easements, they were bona fide purchasers for value taking title to their property free of any claimed easements.
Pursuant to the Marketable Record Title Act ("the Act"), one whose claimed interest in property is supported by at least forty years of unbroken chain of title, plus any additional time required to trace the title back to the next preceding title record, has "marketable record title." The purpose of the Act "is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction." Mizla v. DiPalo, 183 Conn. 59, 64 n. 9 (1981).
Once established, marketable record title serves to extinguish all prior interests, including easements. General Statutes § 47-33e. See Branch v. Occhionero, 239 Conn. 199, 681 A.2d 306 (1996), (defendant's claim of right of way rendered null and void where neither defendants nor their predecessors in title filed notice of claim within forty years of plaintiff's root of title). In Larsen v. Hammonasset Fishing Association, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV93 0068175 (March 15, 1996, Higgins, J.), aff'd., 44 Conn. App. 908, 688 A.2d 373 (1997), the court explained the operation of the Act,
Sec. 47-33e. Prior interests void.
Subject to the matters stated in section 47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title.
All such interests, claims or charges, however denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that person is within or without the state, whether that person is natural or corporate, or is private or governmental, are hereby declared to be null and void.
Marketable Record Title is created when a person holds an unbroken chain of title to property for at least 40 years then back to the root of title. The root of title is the most recent conveyance or title transaction disclosed by the land records after tracing the title to the property back for a period of 40 years from when marketability of title is being determined. If Marketable Record Title exists, then Connecticut General Statutes Section 47-35e extinguishes any competing claim which CT Page 10878-hb arose prior to the root title.
The McBurneys purchased lot 4 on September 16, 1997. The root of title therefore, with respect to their property, would be the most recent conveyance prior to September 16, 1957. That was the conveyance from Moran to Mrs. Walker, a 1950 warranty deed conveying lot 4 and the 10-foot strip of the lawn directly south. Although it references the "1885 Plan," the deed does not set forth any easement other than the rights Moran gave to Walker across the lawn area. As stated, Moran did not convey the lawn area to Walker in this deed, but rather, he retained the lawn area directly south of lot 4, for himself. Other than the recording of the Moran to Walker deed, there is no evidence that notice of any other easements regarding access to the lawn area south of lot 4 were filed on the Town of Branford land records between 1950 and September 16, 1997. The plaintiffs argue that the "1885 Baker Plan" itself, without Fisk v. Ley, supra, 76 Conn. 295, does not reveal the existence of an easement in favor of the interior rear lots to use the Lawn in front of lot 4. The Plan simply shows an area demarcated "Lawn" adjacent to lots 2, 4, 3 and 1. There is no writing on the map to indicate a use easement as to that Lawn area. The physical characteristics of the Plan do show that the plaintiffs' lot 4 directly abuts "the lawn."
Sec. 47-33b (e) defining the term "Root of Title" states:
(e) "Root of title" means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon CT Page 10878-iu which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it is recorded . . .
In determining the effect a statute such as the Marketable Record Title Act has on the common law, we subject the Act to a liberal construction in accordance with General Statutes § 47-33k which states, "Sections 47-33b to 47-33l, inclusive, shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title as described in section 47-33c, subject only to such limitations as appear in section 47-33d."
Sec. 47-33c. Chain of title for not less than forty years creates marketable record title.
Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject only to the matters stated in section 47-33d.
A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to transfer the interest, either in (1) the person claiming that interest, or (2) some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest; with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest.
Sec. 47-33d. Interests to which title is subject.
Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed; provided a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest; (2) all interests preserved by the recording of proper notice or by possession by the same owner continuously for a period of forty years or more, in accordance with section 47-33f; (3) the rights of any person arising from a period of adverse possession or use, which was in whole or in part subsequent to the effective date of the root of title; (4) any interest arising out of a title transaction which has been recorded subsequent to the effective date of the root of title from which the unbroken chain of title of record is started; provided such recording shall not revive or give validity to any interest which has been extinguished prior to the time of the recording by the operation of section 47-33e; (5) the exceptions stated in section 47-33h as to rights CT Page 10878-iv of reversioners in leases, as to apparent easements and interests in the nature of easements, and as to interests of the United States, this state and political subdivisions thereof, public service companies and natural gas companies.
However, in considering whether the Marketable Record Title Act has negated the Connecticut Supreme Court's decision in Fisk v. Ley, supra, the court takes into consideration the doctrine of stare decisis. Under the doctrine of stare decisis, courts exercising lower jurisdiction must accept as controlling precedent the law as declared by the decision of a court of higher jurisdiction until such decision is reversed, overruled or qualified. White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990). Whether a holding of a court of higher jurisdiction should be re-evaluated and possibly discarded is not for a court of lower jurisdiction to decide. Bridgeport Board of Education v. Bridgeport Education Association, 9 Conn. App. 199, 203-04, 518 A.2d 394, cert. denied, 202 Conn. 802, 519 A.2d 1206 (1987); State v. Portee, 55 Conn. App. 544, 569, 740 A.2d 868 (1999); State v. Maia, CT Page 10878-hc 48 Conn. App. 677, 683 n. 8, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998). "We are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them." State v. James, 69 Conn. App. 130, 133, 793 A.2d 1200 (2002); Boretti v. Panacea Co., 67 Conn. App. 223, 231, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002).
As our Supreme Court stated many years ago: "There is not in the common law a maxim more eminently just, and promotive of the public convenience, than that of stare decisis . . . Besides, if law well established may be annulled, by opinion, a foundation is laid for the most restless instability. The decisions of one court may be overruled by another court; and those of the latter will only have a transient efficacy, until some future court, dissatisfied with them, shall substitute new principles in their place. No system of inflexible adherence to established law can be as pernicious as such ceaseless and interminable fluctuations." Palmer's Administrators Against Mead, 7 Conn. 149, 157 (1828).
"Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency." Conway v. Wilton, 238 Conn. 653, 658-59, 680 A.2d 242 (1996). "It is the most important application of a theory of decision making consistency in our legal culture and it is an obvious manifestation of the notion that decision making consistency itself has normative value . . . Id., 658." (Internal quotation marks omitted.) Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282, 296, 695 A.2d 1051 (1997); State v. Ferguson, 260 Conn. 339, 371, 796 A.2d 1118 (2002).
The Connecticut Supreme Court has recognized on occasions that there are exceptions to the rule of stare decisis. "Principles of law which serve one generation well may, by reason of changing conditions, deserve a later one . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better . . . The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics. A court, when once convinced that it is in error, is not compelled to follow precedent." (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, supra, 237 Conn. 196. "The arguments for adherence to precedent are least compelling, furthermore, when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants . . ." Hopson v. St. Marys' Hospital, 176 Conn. 485, 496 n. 5, 408 A.2d 260 (1979), quoting B. Cardozo, [The Nature of the Judicial Process (1921)] p. 151 . . .; George v. Ericson, 250 Conn. 312, 318, 736 A.2d 889 (1999). CT Page 10878-hd The adjudicative facts in the present dispute are very similar to the facts regarding the dispute in Fisk v. Ley. The court finds that Fisk v. Ley, supra, 76 Conn. 295, was reasonably supposed to have determined the conduct of the residents of Crescent Bluff and the rights of interior rear lot owners to use the lawn areas, and thus, is applicable to the present controversy. "Adjudicative facts are those selected from the gross facts found by the fact-finder from the congeries of record evidence. Such facts are deemed necessary, relevant and material to the particular issues (s) presented for decision. There is an important reason why the facts set forth in an opinion should be selected with care. This reason goes to the heart of stare decisis: Like cases should be treated alike. And because our tradition is fact-specific, it is critical that the concept of 'like cases' should refer to cases that contain like material or relevant facts." State v. Irala, 68 Conn. App. 499, 532, 792 A.2d 109 (2002).
"The decision that emanates from the opinion, the case law, is used to inform, guide and govern future private and public transactions. This future use of the decision is a necessary product if we accept Holmes's definition, as I think we should, that law is nothing more pretentious than a prediction of what the courts will do in fact. To put it another way, a quality opinion will predict how similar factual scenarios will be treated." (Emphasis added.) R. Aldisert, supra, pp. 10-11.[3] State v. Irala, supra, 68 Conn. App. 532.
The present controversy has its roots with Moran's construction of the concrete ramp and the seawall at the end of the grassy lawn area in approximately 1939 following damage and soil erosion due to the hurricane of 1938. In this case, the court finds that Moran was motivated to repair the wall and to construct the concrete ramp with its metal stairs, for safety purposes and to prevent further erosion of the common lawn area abutting his property. In Fisk v. Ley, supra, the construction of a wall was also to protect the lawn and to enhance the property of a waterfront owner. Both in Fisk and in the present case the lawn and the wall were being maintained by the owners of the lots fronting the lawn at no costs to the interior lot owners. In Fisk, the Supreme Court found that the waterfront lot owners in constructing the new wall on an altered property line were trying to increase the size of the lawn "to secure as large a measure of benefit for themselves as possible" to the detriment of the interior rear lot owners, despite the benefits that would inure to all lot owners.
In the present case, Craig, the plaintiffs' predecessor in title and Lowlicht, the owner of adjoining lot 2, in exchange for repairing the wall at their cost have sought to exclude the interior lot owners from CT Page 10878-he the lawn area by the execution of a property agreement, and the erection of a fence to their own benefit to secure themselves exclusive enjoyment of the lawn. In both Fisk and the present cases, the actions of the lot owners fronting the water are detrimental to the rear lot owners, despite benefits which may inure to the rear lot owners by way of the repairs to the wall and the stairs. The similarities between the adjudicative facts in Fisk v. Ley, supra, 76 Conn. 295, and the present actions before this court are striking.
Fisk continues to be cited as relevant law. See Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 757 A.2d 1103 (2000); Aunt Hack Ridge Estates, Inc., 160 Conn. 109, 273 A.2d 880 (1970); see also Tuccio v. Lincoln Development Corp., 27 Conn. Sup. 373, 376, 239 A.2d 69 (1967) (Connecticut is known to hold the "broad" view as concerns parks and recreational areas . . . The "broad" view protects the private rights of a grantee to whom a conveyance was made by reference to a plat, and to a user of parks and greenbelt are as laid out on such plat, on the theory that such private rights, entirely independent of public rights growing out of dedication, were created by implied grant, implied covenant or estoppel"). These recent citations by Connecticut courts are an indication that the principles recited in Fisk v. Ley, were not to be adversely affected by the passage of the Marketable Title Act.
In II Giardino, LLC v. Belle Haven Land Co., supra, 254 Conn. 502, the court dealt with issues similar to those presented in the present case. In citing Fisk v. Ley, supra, Il Giardino, supra at 525 stated:
In Whitton v. Clark, supra, 112 Conn. 32-34, we stated that "the law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyance to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands.
II Giardino, LLC v. Belle Haven Land Co., supra, 254 Conn. 525; Derby v. Alling, 40 Conn. 410, 432 (1873); Pierce v. Roberts, 57 Conn. 31, 38, 17 A. 275 (1889); Fisk v. Ley, 76 Conn. 295, 300, 56 A. 559 (1903); Street v. Leete, 79 Conn. 352, 358, 65 A. 373 (1906).
II Giardino, supra at 254 Conn. at 526, makes clear that the precise extent of the obligation is dependent on the particular circumstances of the case, and that public policy would forbid the rule to lay a dead hand upon the natural use, development and sale of property as the needs of the community may develop. It accordingly applies the right of a lot owner to CT Page 10878-hf extend to those uses which are of value to the lot owner. The continued use of the lawn area in the present case is valuable to the rear lot owners.
The II Giardino court further stated:
The nature of the right obtained by the lot owner is that of an implied easement. See Lake Garda v. D'Arche, [ 135 Conn. 449, 66 A.2d 120 (1949)]; Rischall v. Bauchmann, 132 Conn. 637, 644, 46 A.2d 898 (1946). Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 169, 464 A.2d 26 (1983). Courts have permitted such an easement by implication to arise under the circumstances described in Whitton v. Clark, supra, 112 Conn. 33-34, where: (1) under an estoppel theory, the party reasonably anticipated the use of the streets disclosed on the map that would prove beneficial to him; and (2) under an implied covenant theory, the use served as an inducement to the purchase of the lot.
II Giardino LLC v. Belle Haven Land Co., supra, 254 Conn. 527.
The court finds that a lot owner has an implied easement when his deed refers to a map which has an avenue or common area that is of benefit to the lot owner. The language of Fisk v. Ley, supra, 76 Conn. at 300, that the "filing of the plan in the town clerk's office, and the conveyance referring to it, annexed to every lot the right to the use of the 'avenue' and 'lawn,' to go over them to the Sound; and to use the strip of beach between the foot of the bank and the water for all such purposes as might reasonably serve the convenience of an adjoining proprietor," created an easement by implication. This easement is a matter of record, as every conveyance of all parties in this case refer to the plan or map in question. It creates no instability of title, because the rule of law is fundamental. So long as the title searcher is trained in the law, is aware of the doctrine of implied easements as applicable to references to maps in deeds, the stability of title is unaffected.
II Giardino, supra, 254 Conn. at 537, stated that the ultimate purpose of the Marketable Title Act is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past, and thus to avoid the necessity of examining the record back into the distant time for each new transaction. The case before this court does not require the examination of the record into the distant past. What is necessary is to look at the deeds in the chain of title. The deeds in this case refer to the "1885 map or plan of 35 building lots belonging to E.B. Baker, Trustee, located at Pine Orchard." CT Page 10878-hg
The Marketable Title Act functions to extinguish those property interests that once existed, and would still exist but for the absence from the land records in the affected property's chain of title. In the present case the interests of the rear lot owners are not extinguished because their implied easement is not absent from the land records. It is in every deed in this case, and every deed creates an implied easement under the rule of Fisk v. Ley, supra. "Where easements are implied from deed descriptions or from references to a plat in a conveyance of a lot in a tract type subdivision development or by virtue of implied dedication to public use of roadways and rights-of-way, the common element is that such easements are necessary for the reasonable enjoyment and use of the benefitted parcel of land. See J. Bruce J. Ely, Jr., supra, § 4.01(1), p. 4-2. Martin Drive Corp. v. Thorsen, 66 Conn. App. 766, 783 n. 8, 786 A.2d 484 (2001).
"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." Kenny v. Dwyer, 16 Conn. App. 58, 64, 546 A.2d 937, cert. denied, 209 Conn. 815, 550 A.2d 1084 (1988); see also Ballentine's Law Dictionary (3d Ed. 1969) p. 569. The defendants were not given express easements by deed over the disputed lawn area. The court concludes, however, that they have implied easements to pass and re-pass over that portion of the plaintiff's land known as the lawn directly to the south of lot 4 and to recreate there. The intent that they enjoy such easements can be implied from the maps, deeds and other recorded instruments submitted into evidence. The recorded instruments in this case manifest an intent by the original grantors to grant an easement necessary for the beneficial use and enjoyment of the defendants' beach community lots, and the court in Fisk v. Ley, supra, acknowledged that the easement was necessary for the enjoyment of those lots. See also, Perkins v. Fasig, 57 Conn. App. 71, 78, 747 A.2d 54 (2000); Stankiewicz v. Miami Beach Association, Inc., 191 Conn. 165, 464 A.2d 26 (1983).
The court, in making this finding, realizes that implied easements are disfavored in Connecticut and "are allowed to a very much more limited extent than in many other states." Kenny v. Dwyer, 16 Conn. App. 58, 64, 546 A.2d 937 (1988); Gager v. Carlson, 146 Conn. 288, 293, 150 A.2d 302 (1959). However, "[i]n this state, the law regarding easements by implication arising out of the severance of title of two adjoining or commonly owned properties is well settled. Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the CT Page 10878-hh other, then, upon a severance of such ownership . . . there arises by implication of law a . . . reservation of the right to continue such use . . . [I]n so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the dominant estate." (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 783 A.2d 1226 (2001), quoting Pender v. Matranga, 58 Conn. App. 19, 27, 752 A.2d 77 (2000). "We of course note that our Supreme Court has abrogated the unity of title doctrine." Kelley v. Tomas, supra, 66 Conn. App. 146; see Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 144-45, 735 A.2d 798 (1999) (en banc).
Fisk v. Ley is a decision of our Supreme Court and, as such, retains the force of precedent unless and until it is overruled by that court or by the legislature. "[T]his court will not reexamine or re-evaluate Supreme Court precedent. Whether a Supreme Court holding should be re-evaluated and possibly discarded is not for this court to decide." Federal Deposit Ins. v. Mutual Communications, 66 Conn. App. 397, 410 n. 3, 784 A.2d 970 (2001) Lavery, C.J. dissenting; State v. Maia, 48 Conn. App. 677, 683 n. 8, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998); State v. Beverly, 72 Conn. App. 91, 105, 805 A.2d 95 (2002).
The court finds, as in Fisk v. Ley, supra, 76 Conn. 295, that it was the intent that the interior lots could use the lawn areas in front of Lots 1, 2, 3 and the subject lot 4, as well as, the grassy area at the end of Crescent Bluff Avenue, which has also been referred to as "the avenue." The court, after visiting Crescent Bluff in the presence of counsel and viewing the subject lawn area, the "avenue extension," the concrete stairs and the seawall walkway, also finds that this easement is reasonably necessary for the use and normal enjoyment of the interior lots.
This finding is not dependent on the fee ownership of the lawn south of lot 4. The Supreme Court in Fisk v. Ley, supra 76 Conn. 301, stated, "The Superior Court was right in holding that title under this deed was not material to the plaintiff's case, and that it was of no consequence in whom the legal title to the avenue, lawn and the beach, might be." (Internal quotation marks omitted) Id. at 301. The Supreme Court in Fisk v. Ley, supra, did not determine legal title to the "avenue extension" or the lawn areas extending to Long Island Sound in front of lots 1, 2, 3 and 4. The fee ownership of the lawn south of lot 4 is discussed further, herein, during the analysis of claims of adverse possession and prescriptive easements. CT Page 10878-hi
Fisk v. Ley, 76 Conn. 295, remains the controlling legal authority in the present case regarding the possible extinguishment of the defendants' implied easement rights. Whether the Marketable Record Title Act, has extinguished rights of the defendants which were granted to them by Fisk v. Ley, supra, 76 Conn. 295, is a determination properly left to the Connecticut Supreme Court.
B.
THE FIDUCIARY'S DEED
The defendants assert that the Fiduciary's Deed from the Estate of John Moran to Lowlicht conveying the lawn areas in front of lot 4 was void because of defects in the proceedings in the New Haven Probate Court. As aforementioned, Atty. Sulzbach was appointed Administrator d.b.n, c.t.a, of the estate, despite the fact that the estate was testate by virtue of Moran's Will and despite the fact that no action was taken by the probate court to remove the previously appointed co-executor of the estate. The defendants further claim that the probate court lacked jurisdiction to allow the sale of the lawn areas due to insufficient notice to all interested including beneficiaries under Moran's Will, and that the probate court additionally failed to follow the express terms of General Statutes § 45a-164 which governs the sale of real property in probate estates.
Sec. 45a-164. (Formerly Sec. 45-238). Sale or mortgage of real property.
(a) Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, temporary administrator, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after such notice as the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of such person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such temporary administrator, administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application.
(b) The court may empower the conservator, guardian, temporary administrator, administrator, executor or trustee to execute a conveyance of such property or to execute a note and a mortgage to secure such property upon giving a probate bond faithfully to administer and account for the proceeds of the sale or mortgage according to law, unless the court finds that there is in force, for such fiduciary, a probate bond in an amount and with security determined in accordance with section 45a-139 or unless the bond is dispensed with in accordance with section 45a-169. The application shall set forth a description of the property to be sold or mortgaged.
(c) After a hearing, the court may authorize that the property be sold to the fiduciary either directly or under the provisions of section 45a-167, except that if a public sale is ordered, the fiduciary may be the purchaser only if the sale is made under section 45a-167. In the case of any proposed sale to a fiduciary, any notice shall indicate that the fiduciary is the proposed purchaser.
(d) If any person having an interest in such real property is not in being or is not ascertained or is under a disability, the court shall appoint a guardian ad litem to represent the interests of such person at the hearing. A guardian ad litem shall not be necessary if such person is represented by a guardian or by a conservator, unless the sale of the property is to such guardian or conservator or such guardian or CT Page 10878-iw conservator has a potential conflict as an applicant or otherwise.
(e) The order and the sale or mortgage under the order shall be conclusive upon all persons then or thereafter existing whose interests have been so represented.
In reply to these claims the plaintiff responds that the defendants lack standing to challenge the deed from the Estate of Moran to Lowlicht in that the defendants have not timely appealed the probate court's decree in compliance with General Statutes §§ 45a-186 and 45a-187; in that the defendants are not beneficiaries, legatees or executors under the Will; and that the defendants are not aggrieved parties in that they have suffered no adverse effect in any legally protected interest as a result of the probate court's actions. The plaintiffs also claim that the Estate of Moran's conveyance to Lowlicht and Lowlicht's subsequent transfer to McBurney is irrelevant due to the plaintiffs McBurney's exclusive possessory right to the lawn area in front of lot 4 arises from their own warranty deed. Lastly, the plaintiffs argue that if the defendants have an implied easement to utilize the lawn area, the fee interests acquired by Lowlicht and McBurney as a result of the probate actions, would still be burdened by said implied easement.
Sec. 45a-186. (Formerly Sec. 45-288). Appeals from probate reads in relevant part:
(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section . . .
Sec. 45a-187. (Formerly Sec. 45-289). Time of taking appeals.
(a) An appeal under section 45a-186 by those of the age of majority and who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days. If such persons have no notice to be present and are not present, or have not been given notice of their right to request a hearing, then appeal shall be taken within twelve months, except for appeals by such persons from a decree of termination of parental rights or adoption, in which case appeal shall be taken within ninety days.
The plaintiffs also directed additional claims that the defendants' rights in the property, if any, had been extinguished by the chain of title and the marketability of Title Act, and that the defendants have failed to prove the existence of a prescriptive easement. The court CT Page 10878-hj has discussed the first of these two claims in length and has resolved it in the defendants' favor. The issue of prescriptive easement will be addressed further on in this decision.
General Statutes § 45a-186 (a) allows "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law," to appeal therefrom to the Superior Court in accordance with the procedures set forth in subsection (b) of § 45a-186. General Statutes § 45a-187 (a) sets forth the time limits for taking an appeal.
There is no dispute that none of the defendants or any beneficiary of the Will, whether or not they received notice, filed an appeal within either 30 days or 12 months as directed by General Statutes §§ 45a-186 and 45a-187. There is no disagreement that the defendants, as well as, many beneficiaries under Moran's Will were not noticed by the probate court of the reopening of the estate; that Sulzbach was being appointed as administrator; and that the estate was seeking to convey the lawn area by a Fiduciary's deed to Sulzbach's own client Lowlicht for $1. This was due, in part, to the neglect of Sulzbach and the probate judge to review the probate court's file regarding the Moran Estate, which had been subject to a lengthy probate process in the 1950s. If this review had occurred it would have revealed that a duly appointed co-executor was still capable of serving in that position, and that there were, in addition to the five persons disclosed as heirs by Sulzbach, numerous other charitable institutions who were residuary beneficiaries in the Will.
The court, therefore, must determine whether the defendants can attack the probate court's orders and decree regarding the sale of the lawn area south of lot 4. The defendants have pleaded the invalidity of the probate court's action as a special defense to the plaintiffs' claim that the defendants have trespassed on the parcel of real estate that was the subject of the probate court's orders and decree of sale. In determining this question, the court must also decide whether the defendants have standing to bring these actions.
Probate courts have an inherent power to correct clerical errors in their own decrees, but they have no non-statutory power to revoke, set aside, vacate or modify its own decrees. Our courts of probate possess such powers only as are expressly or by implication conferred by statute upon them. Sears v. Terry, 26 Conn. 273, 286 (1857); Delahanty v. Pitkin, 76 Conn. 412, 56 A. 881 (1904). A final probate decree can be set aside, reversed or modified, only upon appeal duly taken from it. Schutte v. Douglass, 90 Conn. 529, 536, 97 A. 906 (1916). CT Page 10878-hk
If the lack of jurisdiction appears when it is too late to take an appeal, the judgment will fall when collaterally attacked Id. at 537. See also, Dunn's Appeal, 81 Conn. 127, 70 A. 703 (1908); Potwine's Appeal, 31 Conn. 381 (1863); Delahanty v. Pitkin, supra, 76 Conn. 412. The power of the probate court to set aside its own decrees has been denied when it appeared that the decree being attacked was beyond the court's jurisdiction, Schutte v. Douglass, supra, 90 Conn. 529; was clearly erroneous, Massey v. Foote, 92 Conn. 25, 101 A. 499 (1917); or was the result of fraudulent suppression of the true facts, Gill v. Bromley, 107 Conn. 281, 140 A. 721 (1928); Fowell v. Howell, 117 Conn. 565, 571, 169 A. 199 (1933). This principle also applies when a decree was rendered without notice to a party in interest, possibly through the fraudulent acts of a fiduciary in not disclosing to the Probate Court the existence of that party in interest. Haverin v. Welch, 129 Conn. 309, 27 A.2d 791 (1942).
"A collateral attack on a judgment occurs when, in a subsequent judicial proceeding, one party relies on the judgment as a basis of his cause of action or defense, and the other party asserts the invalidity of the judgment. The one asserting the invalidity of the judgment is the one collaterally attacking it." Miller v. McNamara, 135 Conn. 489, 495, 66 A.2d 359 (1949).
However, even fraud will not justify a collateral attack unless the decree of the probate court fails to satisfy the five requisites of a valid decree. "The general requirements for the application of the principle of res adjudicata to probate decrees are: (1) That the person or property affected by the decree was subject to the territorial jurisdiction of the State, Holcomb v. Phelps, 16 Conn. 127 (1844); Sears v. Terry, supra, 26 Conn. 273; Woodward's Appeal, 81 Conn. 152, 70 A. 453 (1908); (2) That a reasonable method of notification was employed and a reasonable opportunity to be heard was afforded to persons affected by the decree, Haverin v. Welch, supra, 129 Conn. 309; Lewis v. Klingberg, 100 Conn. 201, 123 A. 4 (1923); (3) That the court rendering the decree had jurisdiction in the sense of competency to entertain such a matter and render such a decree, Terry's Appeal, 67 Conn. 181, 34 A. 1032 (1896); Lewis v. Klingberg, supra, 100 Conn. 201; Ferrie v. Trentini, 111 Conn. 243, 149 A. 664 (1930); (4) That the decree relied upon was really a final decree . . ., Home Trust Co. v. Beard, 116 Conn. 396, 165 A. 208 (1933); (5) That the requisite procedure to get the matter before the court and render a valid decree was followed. Sears v. Terry, supra, 26 Conn. 273; Dorrance v. Raynsford, 67 Conn. 1, 34 A. 706 (1895)." Connecticut Probate Practice, Locke and Kohn, Sec. 116, page 226 (1951). Thus, the principle of res adjudicata can prevent a collateral CT Page 10878-hl attack on a valid decree of the probate court.
Collateral attacks have also been allowed when decrees for the sale of real estate have been made where the statutory grounds for ordering a sale did not exist. See Sheldon v. Woodbridge, 2 Root 473 (1796); fraud by an administrator in setting too low a sales price; see Griffin v. Pratt, 3 Conn. 513 (1821). A collateral attack was also allowed as to a decree appointing a fiduciary, where the power to appoint did not exist. See Terry's Appeal, supra, 67 Conn. 181. In Terry's Appeal, supra, the Supreme Court held that the probate court has no power to appoint an administrator with the will annexed when there was an Executor qualified to serve. Other cases involving collateral attacks on the ground of lack of competency of the probate court to render a decree are Lewis v. Klingberg, supra, 100 Conn. 201 and Ferrie v. Trentini, supra, 111 Conn. 243.
In the finding of facts the court has found that the Estate of Moran already had an appointed Co-Executor that had not become deceased, that being the successor institution to the Union and New Haven Trust Company. The probate court, in appointing Sulzbach as the Administrator, d.b.n., c.t.a. was in violation of General Statute § 45a-242, regarding the removal of a fiduciary and the grounds for removal of a fiduciary. Pursuant to General Statute § 45a-243, a fiduciary that been removed by a probate court has the right to appeal its removal to the Superior Court. In the present case, the successor banking institution received no notice that it was being removed as a co-executor and nor did it receive any notice that Sulzbach was being appointed. It also makes no difference that the corporate fiduciary's successor may be an out of state bank, as such out of state successor bank is authorized to act as a fiduciary, so long as it complies with the provisions of General Statutes § 45a-245a. Under the facts, as found in the present cases, the probate court had no authority to remove the successor in interest bank, as the Executor of John Moran's Estate, and in doing so, did not comply with the statutorily mandated process for doing so.
Sec. 45a-242. (Formerly Sec. 45-263.) Replacement of fiduciary.
(a) Grounds for removal of fiduciary. The court of probate having jurisdiction may, upon its own motion or upon the application and complaint of any person interested or of the surety upon the fiduciary's probate bond, after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes incapable of executing such fiduciary's trust, neglects to perform the duties of such fiduciary's trust, wastes the estate in such fiduciary's charge, or fails to furnish any additional or substitute probate bond ordered by the court, (2) lack of cooperation among cofiduciaries substantially impairs the administration of the estate, (3) because of unfitness, unwillingness or persistent failure of the fiduciary to administer the estate effectively, the court determines that removal of the fiduciary best serves the interests of the beneficiaries, or (4) there has been a substantial change of circumstances or removal is requested by all of the beneficiaries, the court finds that removal of the fiduciary best serves the interests of all the beneficiaries and is not inconsistent with a material purpose of the governing instrument and a suitable cofiduciary or successor fiduciary is available. A successor CT Page 10878-ix corporate fiduciary shall not be removed in such a manner as to discriminate against state banks or national banking associations, nor shall any consolidated state bank or national banking association or any receiving state bank or national banking association be removed solely because it is a successor fiduciary, as defined in section 45a-245a.
Sec. 45a-243. (Formerly Sec. 45-264). Appeal from removal of fiduciary. Effect on successor fiduciary.
(a) When any fiduciary has been removed for cause by a court of probate, as provided in section 45a-242, the fiduciary may appeal from such order of removal in the manner provided in sections 45a-186 to 45a-193, inclusive. In the event of an appeal from the order of removal taken by the fiduciary who has been removed, the appointment of a successor shall not be stayed by the appeal but shall be a temporary appointment. Such successor fiduciary shall act during the pendency of the appeal and until the appeal is withdrawn or final judgment entered thereon.
(b) If the order of removal is sustained upon appeal, such appointment shall become permanent.
(c) If the order of removal is vacated upon appeal, such appointment may be terminated, subject to the obligation of such successor fiduciary to render a final account, and the acts of the successor fiduciary for the period of the pendency of the appeal shall be of full effect.
The probate court lacked jurisdiction or authority to name an executor, or to appoint someone other than the person named in the will as the executor or successor executor. Appeal from Bencivenga, 30 Conn. App. 334 (1993), aff'd., 28 Conn. 439 (1994). "Our law favors virtually no exception to the appointment of an executor or a successor executor named in a will . . . A Probate Court has no discretion to appoint someone other than the person named; testators are entitled to select their own executors, and those persons may not be rejected unless excluded by common law or statute." Id. at 338. (probate court had no discretion to grant creditor's application to remove executrix and CT Page 10878-hm appoint administrator where will named successor executors and, therefore, they had statutory right of appointment as successor executors).
In the present action, the will named Union and New Haven Trust Co. as executor and provided also that any entity resulting from the reorganization, merger or consolidation of said bank was also named as executor or successor executor of the will. The office of an executor remains open until terminated by death, resignation or removal. City Trust Co. v. Bulkley, 51 Conn. 598, 604 (1964). Here remains an entity resulting from the merger of Union and New Haven Trust Co. with other banks. The petitioner's Motion to Reopen and subsequent filings of Attorney Sulzbach failed to report the bank's role as executor.
A probate court has no jurisdiction to appoint an administrator when an executor named in the will remains able to administer the estate. A decree making such an appointment is a nullity. Appeal of Terry, 7 Conn. 181, 34 A. 1032 (1896). In the Terry case, the probate court had approved the executor and, therefore, could not also appoint an administrator with the will annexed. The Supreme Court held that "it was a legal impossibility for the court of probate to clothe another person at the same time, with the powers which the will and the law had already given to and continued in the executor." Id.; but see Rautigan v. Norwich Nickel Brass Co., 86 Conn. 281 (1912) (procedural deficiencies in the removal of a fiduciary held not subject to collateral attack in subsequent proceeding concerning title to land).
The Terry decision governs in the present action. In contrast to the Rautigan v. Norwich Nickel Brass Co., supra, 86 Conn. 281, the present action deals with the lack of the probate court's jurisdiction rather than the erroneous exercise of it. The jurisdiction of the probate court to appoint an administrator does not exist where an executor (here, the bank executor) is already in place.
Moreover, any argument that the probate court implicitly removed the bank as the fiduciary would fail. The removal of a fiduciary is an extraordinary measure. Satti v. Kozek, 58 Conn. App. 768, 776, cert. denied, 254 Conn. 928 (2000). The removal of a fiduciary requires notice and a hearing. There was no application for the removal of the bank fiduciary and the probate court never ordered the notice of a hearing. Nor was there a decree of a removal. Instead, there was an appointment of a new fiduciary, Attorney Sulzbach administrator, d.b.n. c.t.a., for the estate without any notice to interested parties, including the heirs, beneficiaries, the successor executor to the Union and New Haven Trust Co. or the defendants in the present action. CT Page 10878-hn
The probate court did not follow statutory procedure for appointing Sulzbach as the administrator, d.b.n., c.t.a., in that the probate court did not hold a hearing and did not send notice to all persons interested in the estate as required by General Statutes § 45a-286, § 45a-290 or § 45a-303 (2)(b). General Statutes § 45a-290 (b) and (c) provide:
(b) If during the settlement of an estate, the executor or the administrator with the will annexed appointed by the court dies or resigns or is removed from such trust, and no alternate or successor has been named in the will, the court shall appoint an administrator of the estate with the will annexed, de bonis non, subject to the same provisions as to hearing, notice, waiver of or order dispensing with notice, selection of the administrator and bond, as are stated in this section and section 45a-286.
(c) If the person designated in the will to be executor has died or refuses to accept or is incapable of accepting such trust, or if during the settlement of the estate, the executor appointed by the court dies, or resigns or is removed from such trust, and the will names an alternate or a successor, the court shall appoint such alternate or successor executor named in said will as executor, who shall have all the powers and duties as provided in the will. Such appointment shall be subject to the same provisions as to hearing, notice, waiver of or order dispensing with notice, and bond, as are stated in this section and sections 45a-286 and 45a-289.
General Statutes § 45a-303 (2)(b) (formerly Sec. 45-195) states in relevant part:
(b) Application, notice and hearing re letters of administration. Upon application for letters of administration to the court of probate having jurisdiction of the estate of an intestate decedent, the court shall, before granting letters of administration, after notice required by this section, hold a hearing. Notice of such hearing, either public notice, personal notice or both as the court deems best, shall be given to all persons interested in such estate, . . . unless all persons so interested sign and file in court a written waiver of such notice, or unless the court, for cause shown, dispenses with such notice . . .
General Statutes § 45a-286 provides:
Any court of probate shall, before proving or disapproving any last will and testament, or codicil thereto, hold a hearing thereon, of which CT Page 10878-ho notice, either public or personal or both, as the court may deem best, has been given to all parties known to be interested in the estate, unless all parties so interested sign and file in court a written waiver of such notice, or unless the court, for cause shown, dispenses with such notice. The finding by any such court that the estate is not more than sufficient to pay the expenses of administration and of the funeral and last sickness shall be sufficient cause to dispense with such notice.
"It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. See Sears v. Terry, supra, 26 Conn. 273, 284. Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute." Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963); Brownell v. Union New Haven Trust Co., 143 Conn. 662, 665, 124 A.2d 901 (1956); General Statutes § 45a-98 (formerly § 45-4).They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power. Killen v. Klebanoff, 140 Conn. 111, 115, 98 A.2d 520 (1953); Palmer v. Reeves, 120 Conn. 405, 408, 182 A. 138 (1935).
The probate court's appointment of Attorney Sulzbach was made without jurisdiction. A court is without power to render a judgment if it lacks jurisdiction of the parties or of the subject-matter, one or both. In such cases, the judgment is void, has no authority and may be impeached. O'Leary v. Waterbury Title Co., 117 Conn. 39, 43, 166 A. 673 (1933); Ferrie v. Trentini, supra 111 Conn. 243, 252. "It is an acknowledged principle . . . of every court in the world, that not only the decisions, but everything done under judicial process of a court, not having jurisdiction, are, ipso facto, void." Clover v. Urban, 108 Conn. 13, 17-18, 142 A. 389 (1928).
It follows that further actions, orders and decrees made in connection with this appointment, having been made for the purpose of selling the waterfront lawn directly south of lot 4, would also be void and without legal effect, if subjected to a proper legal attack by an "aggrieved party" having the requisite standing.
The defendants' claims regarding the violation of statutory procedures by the probate court appears to be a direct attack on the probate court's orders and decrees regarding the appointment of the administrator d.b.n., c.t.a. and the resulting sale of the real estate by him. The defendants' main objective is to set aside the decrees and to leave the probate record as if such decrees had never been passed. It is not an CT Page 10878-hp attack upon the decrees which, if successful, would avoid their full effect for some limited purpose and still leave the decree in full force for all other purposes; but it is one which, if successful, would set aside the decree for all purposes. A direct attack upon a judgment, if successful, wipes it out of existence; while a collateral attack upon it, if successful, leaves it in full force, except as against the party who collaterally attacks it and as regards the case in which it is so attacked. Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 512, 429 A.2d 967 (1980). In deeming this a direct attack on the probate court's decree, this court recognizes that the defendants' claim has been pleaded as a special defense to the plaintiffs' allegations of trespassing. One could view this as only a request by the defendants that the probate court's orders and the resulting sale of the disputed lawn area at lot 4 to the plaintiffs not be enforced against them in the present case. If the sale of the lawn area at lot 4 to the plaintiffs was recognized as unenforceable against the defendants, the defendants could hardly be termed trespassers on that particular lawn area. However, the court notes that despite the defendants' multiple claims regarding the irregular aspects of the court's procedures and the activities of Sulzbach, the Administrator, d.b.n, c.t.a., the defendants allege negligent conduct, rather than fraud. The lack of claims of fraud has guided the court in its determination that the defendants are making a direct attack on the probate court's proceedings. "An attack upon a judgment which is merely incidental to the principal claim or defense of a party is quite generally regarded as collateral." Miller v. McNamara, 135 Conn. 489, 495, 66 A.2d 359 (1949); 1 Freeman, Judgments (5th Ed.) p. 607; 1 Black, Judgments (2d Ed.) p. 376; see Bennett Estate v. New Haven, 117 Conn. 25, 37, 166 A. 680; McNemey v. Downs, 92 Conn. 139, 143, 101 A. 494; Smith v. Hall, 69 Conn. 651, 665, 38 A. 386. "On the other hand, it is generally held that an equitable proceeding for relief on the ground that a judgment is invalid because of fraud, mistake, or the like, which entered into its procurement as an efficient cause constitutes a direct and not a collateral attack upon it." Miller v. McNamara, supra 135 Conn. 489, 495; see also, Delehanty v. Pitkin, supra, 76 Conn. 412, 423.
Nonetheless, in order to proceed with a direct or collateral attack on the orders and decrees of the probate court the defendants must be aggrieved parties in order to have standing to mount any such attack. The court, for reasons that follow, finds that the defendants are not aggrieved parties and thus, have no standing to do so.
The trial court does not have subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing. Appeal from Probate of Bencivenga, 30 Conn. App. 334, 337, 620 A.2d 195, CT Page 10878-hq cert. denied, 225 Conn. 919, 625 A.2d 821 (1993). In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be "aggrieved" by the court's decision. General Statutes § 45a-186; Kucej v. Kucej, 34 Conn. App. 579, 581, 642 A.2d (1994); Erisoty's Appeal from Probate, 216 Conn. 514, 519, 582 A.2d 760 (1990); Appeal from Probate of Bencivenga, supra, 337. "Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court." (Internal quotation marks omitted.) Erisoty's Appeal from Probate, supra, 519; see also Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980).
Aggrievement falls within two categories, classical and statutory. Bucholz's Appeal from Probate, 9 Conn. App. 413, 415, 519 A.2d 615 (1987). Classical aggrievement exists where "there is a possibility, as distinguished from a certainty," that a Probate Court decision has adversely affected a legally protected interest of the appellant in the estate. Erisoty's Appeal from Probate, supra, 216 Conn. 519; Appeal from Probate of Bencivenga, supra, 30 Conn. App. 336-37; see also Bucholz's Appeal from Probate, supra, 416. The principles of classical aggrievement are not interpreted "so narrowly as to limit [their] applicability solely to cases involving an adverse effect upon a direct interest in the probate estate." (Emphasis added.) Erisoty's Appeal from Probate, supra, 216 Conn. 521; see also Kucej v. Kucej, supra, 34 Conn. App. 579, 584 fn 3; Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 517-18. An appellant's aggrievement may consist of the possibility of an injurious effect on a legally protected interest as well as of a direct pecuniary interest. Erisoty's Appeal from Probate, supra, 521; see Merrimac Associates, Inc. v. DiSesa, supra, 517-18. "[A] legally protected interest may derive from the administration of a probate estate." Erisoty's Appeal from Probate, supra, 521. "Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case." Bucholz's Appeal from Probate, supra, 416. It merely requires a claim of injury to an interest that is protected by statute. The defendants' claim would be that of classical aggrievement.
General Statutes § 45a-191 also requires "In each appeal from probate or from the actions of commissioners, the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such court of probate." The plaintiffs have filed a two-count complaint. In the First Count they allege that the defendants are trespassing onto the plaintiffs' land, that being the lawn directly south of lot 4. In the CT Page 10878-hr Second Count, the plaintiffs allege that they have obtained ownership of this same lawn area as a result of an uninterrupted, open, visible and continuous claim of right for more than 15 years prior to the commencement of this action and that they, therefore have a legal right and entitlement to enjoy this property free from any claim or use by the defendants. The First and Second Counts both contain claims that involve the plaintiffs' ownership claims, which are founded in part, on the receipt of the Fiduciary's Deed from the Estate of Moran. The defendants in their Second Special Defense to the First Count, dated September 25, 2002, pleaded that the irregularities in the probate procedures, as herein discussed, leaves title to the disputed lawn area to the south of lot 4 in the Estate of Moran and not the plaintiffs. The defendants never allege on the face of this special defense that they are aggrieved parties, but rather that the actions of the administrator and the probate court have harmed the remaindermen, beneficiaries, heirs and the executor successor bank. However, the defendants cannot trespass on the land of the plaintiffs, if the plaintiffs, indeed are not the owners of the land. The Estate of Moran is not a party to this action, and as such, and the estate has made no claims of trespassing against the defendants. The court, therefore finds that the filing of the Second Special Defense does satisfy the requirement that the alleged interests of the defendants is sufficiently alleged on the face of the record before the court, to satisfy the mandates of General Statutes § 45a-191.
Sec. 45a-191. (Formerly Sec. 45-293). Interest of appellant to be stated.
In each appeal from probate or from the actions of commissioners, the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such court of probate.
However, the court does not find that there is a possibility of an injurious effect on any legally protected interests or pecuniary interests of the defendants. See, Erisoty's Appeal from Probate, supra, 521; see also, Merrimac Associates, Inc. v. DiSesa, supra, 517-18. The defendants have alleged that the probate court in removing the executor; appointing the administrator, d.b.n, c.t.a.; and ordering a sale of the real estate lawn area to the plaintiffs, all were done without proper notice to interested parties, those parties being the remaindermen, beneficiaries, heirs and the Executor bank. Had the probate court followed the statutory mandates as discussed above, in this section, the defendants would not have been the recipients of any such notice. They have never had any legally protected interest in the Estate of John Moran. They cannot argue, nor have they stated any grounds for a possibility of an injurious effect as to their pecuniary interests, nor have they presented any evidence of an injurious effect to their pecuniary interests.
The plaintiffs' Amended Complaint dated November 18, 2002, which was filed with the consent of the defendants, does not ask for any monetary damages. It requests injunctive relief to restrain the defendants from entering onto the plaintiffs' property. It also asks the court to CT Page 10878-hs determine the rights of the parties "in or to the land of the plaintiffs and settling title thereto." The defendants have claimed in their special defenses that they have "a private right or easement appurtenant" to use the disputed lawn area and a prescriptive easement across said lawn area.
The defendants were granted an implied easement by the Connecticut Supreme Court in its holding in Fisk v. Ley, supra, 76 Conn. 295, in 1903. The defendants' claim of prescriptive easement arises from a claim of open, visible, continuous and uninterrupted use of the lawn area south of lot 4 "under a claim of right" for a period of 15 years or more prior to the commencement of the plaintiffs' actions. If the defendants prove by a preponderance of the evidence that they have prescriptive easement in the conveyed property and that easement matured prior to the commencement of the subject actions and the probate court's conveyance, it will not be adversely affected by the fee sale. The plaintiffs in their reply memorandum of law have indeed conceded that the fee conveyed by the probate court by way of the Fiduciary's Deed would be burdened to the same extent, whether owned by the Moran estate, the Lowlichts. The Lowlicht's quitclaim deed to the plaintiffs, thereafter, would also be burdened. See, e.g. Collins v. Prentice, 5 Conn. 38 (1842) (easement's relationship with land unchanged by probate sale). Additionally, the defendants, while claiming an implied easement and prescriptive easement, have not alleged that they have any fee interest themselves in the lawn area south of the plaintiffs' lot 4, that would be adversely affected or injured pecuniarily or otherwise.
While the court has discussed facts regarding the probate court's irregular procedures that ultimately resulted in the sale of the real estate parcel from the Estate of Moran to the Lowlichts and has been critical of those procedures, the defendants do not have the necessary standing to challenge the probate court's orders and decrees. Therefore, the probate court's orders and decrees regarding the sale of the lawn directly south of lot 4 to the plaintiffs will not be reviewed by this court. The plaintiffs are the owners of the fee, Lot 4, as well as the lawn area directly to the south of lot 4, said lawn area also being known as, The "Second Piece" of 2 Crescent Bluff Avenue, as more fully described in the quitclaim deed from Roger Lowlicht and Kay Haedicke to James McBurney and Erin McBurney dated May 18, 1998 and recorded in the Branford Town Clerk's Office on May 21, 1998, in Volume 649, Page 122. Said Second Piece is bounded and described as follows:
All that certain piece or parcel of land, situated in the Town of Branford, County of New Haven, State of Connecticut, and being the majority of the parcel labeled "N/F John Moran" on a map entitled CT Page 10878-ht "Property Survey, land of William B. Susan H. Craig, 2 Crescent Bluff Avenue, Pine Orchard, Branford, Connecticut" by LWF Land Surveying, scale 1" = 10', dated July 1997 and revised September 8, 1997, which map is to be filed herewith in the Branford Town Clerk's Office, said parcel being more particularly bounded and described as follows:
Commencing at a point in the Westerly street line of Crescent Bluff Avenue, said point being the Southeasterly corner of the premises known as #2 Crescent Bluff Avenue;
Thence running S 12°-39'-00" W 30.12 feet along said Westerly street line of Crescent Bluff Avenue;
Thence running S 18°-33'-00" W 31.7 feet, more or less, substantially along the Westerly edge of the concrete steps shown on said map;
Thence running Westerly 43 feet, more or less, along the Mean High Water line of Long Island Sound;
Thence running N 12°-39'-00" E 56.5 feet, more or less, along premises known as #6 Crescent Bluff Avenue;
Thence running S 77°-21'-00" E 45.00 feet along said #2 Crescent Bluff Avenue, to the point and place of commencement.
C.
Claims of Adverse Possession and Prescriptive Easement
Having determined that Fisk v. Ley, supra 76 Conn. 295, gave the defendants an implied easement to use the lawn area directly to the south of lot 4, the court next determines the plaintiffs' and the defendants' respective claims regarding adverse possession and prescriptive easement. The majority of witnesses for both the plaintiffs and the defendants testified as to the use of the lawn area to the south of lots 4 and 2 to access the concrete slope, the seawall walkway and the water by most rear lot owners, defendants among them, and the court finds that fact to be proven. As to other types of recreational and social activity on these lawn areas, the use of the lawn was less frequent, but was nonetheless, continuous. The time periods of these uses spans from the 1940s until the past several years.
Plaintiffs argue that they do not claim title to the fee to the lawn area south of lot 4 by adverse possession as against the defendants. CT Page 10878-hu Rather, plaintiffs allege in the Second Count of their amended complaint that plaintiffs' predecessors in title used the entirety of the lawn area in such a manner so as to have extinguished any possible use rights defendants, or their predecessors may have had to plaintiffs' property. The plaintiffs cite Public Storage, Inc. v. Eliot Street Limited Partnership, 20 Conn. App. 380, 382 (1989), which states, "[where a] servient owner . . . should by adverse acts lasting through the prescriptive period obstruct the dominant owner's . . . enjoyment, intending to deprive him of the easement, he may by prescription acquire the right to use his own land free from the easement." Id. (internal quotations omitted). The prescriptive period in Connecticut is fifteen years. See General Statutes § 47-37. To establish prescriptive rights, the claimed right must be exercised openly and visibly, under a claim of right and uninterruptedly, for fifteen years. Westchester v. Greenwich, 27 Conn. 495, 501 (1993).
The plaintiffs argue that from the time of his purchase of lot 4 and his alleged purchase of the lawn area south of lot 4 in 1933, John Moran openly and purposefully used the entire lawn area exclusively as his own for the entire 17-year period he owned the property until he sold the property to Mrs. Walker in 1950. The court disagrees. Whether based on the theory of adverse possession, which the defendants maintain the plaintiffs are claiming, or prescriptive easement as the plaintiffs color their claim, the plaintiffs have not demonstrated adverse possession by clear and convincing evidence and nor they have not proved prescriptive easement by a preponderance of the evidence.
In each of the complaints brought by the McBurneys against the four sets of defendants, there appears the following allegation:
"Insofar as defendants and/or their predecessors in title may have had such rights, plaintiffs and their predecessors in title have used such portion of the Lawn openly, visibly, continuously, and uninterruptedly, and under a claim of right for more than fifteen (15) years before the commencement of this action in such a way as to prevent defendants and their predecessors in title from exercising the rights they claim, and therefore, notwithstanding such claim of rights, plaintiffs now have the legal right and entitlement to enjoy their property free of any claim or use by defendants."
The plaintiffs' claims do not appear to be claims of easement. They claim that they own the lawn, south of their house at lot 4, to Long Island Sound, and they claim the right to exclude the defendants. Indeed, their claim in this case is that the defendants have trespassed on their property. This would be a claim of ownership, and as such, their CT Page 10878-hv claim would appear to be one of adverse possession, as a prescriptive easement merely gives an easement, not ownership.
The essential elements of this claim if it is, in fact, one of adverse possession, are that the owner of the property, here the defendants, shall be ousted from possession and kept out uninterruptedly for 15 years under a claim of right by an open, visible and exclusive possession of the plaintiffs and their predecessors in title, without license or consent of the rear lot owners. See Kramer v. Petisi, 53 Conn. App. 62, 67 (1999); Lord v. Mansfield, 50 Conn. App. 21, 30-31, cert. denied, 247 Conn. 943 (1998). It has already been determined by the court that the defendants were at no time owners of the lawn area directly south of lot 4 as Moran owned the subject lawn from 1933 until his death in 1951, at which time it passed to his estate.
If the plaintiffs have, in fact, asserted an adverse possession claim, it must be proved by clear and convincing evidence. Oak Leaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 93, cert. denied, 216 Conn. 827 (1990). They have failed to do so. In addition, if as the plaintiffs argue, their claim is for prescriptive easement rights thereby extinguishing the defendants' prescriptive or implied easement rights, the plaintiffs have also failed to meet their burden of proving such by a fair preponderance of the evidence necessary for a prescriptive easement. The testimony of witnesses for the plaintiffs confirmed continuous passing and re-passing on the lawn areas by residents of the interior lots with less frequent, but continuous recreational use. The plaintiffs' witnesses testified that when interior lot owners did cross the lawn area, it was their belief that it was only with the explicit or tacit permission and the forbearance of the owners of Lots 2 and 4, and in certain cases Lots 1 and 3 However, testimony by the plaintiffs' witnesses was minimal, that any owner of lots 2 and 4 and 1 and 3 ever barred or prevented any resident lot owner from crossing the lawns or using the lawns until the present circumstances arose in 1996. In fact, the testimony shows that few, if anyone had direct contact or conversation with John Moran, the owner of lots 2, 6 and 4 from 1933 until his death. Moran only resided at Crescent Bluff sporadically and on a seasonal basis.
The court finds that rear lot owners passed and re-passed over all lawn areas shown on the "1885 Baker Plan," including the lawn south of lot 4. In fact, this lawn area and the lawn south of lot 2 had the most frequent usage, as residents used the concrete slope and the grass lawn directly abutting the slope for sitting and access to the water. This concrete slope runs across the end of the grassy area of the lawn at lots 4 and 2. The majority of testimony in behalf of the plaintiffs' claim came from persons who resided seasonally, part-time, or were visitors to Crescent CT Page 10878-hw Bluff from the 1930s to the present. Even those few who stated they were full-time residents, were there only for periods less than 15 years and some of this time they were away from Crescent Bluff for extended periods of time. One spends six months a year vacationing in the Carribean. Another would go away to college, and another was there for weekends on several occasions in the 1930s. Their periods of observation of the lawn area and the uses thereof were limited. None of them had knowledge of the decision in Fisk v. Ley, supra, prior to 1997, and most learned of it only after the commencement of the present litigation. Moran never mentioned it to anyone prior to his death in 1951, and he in fact, had purchased an interest in the lawn south of lot 4 from Louis Fisk, the plaintiff in Fisk v. Ley, supra. The court finds that there may have been an unspoken code of behavior regarding the extent of acceptable usage of the lawn area at lot 4 by Crescent Bluff lot owners from the 1930s until 1996, but until it remained largely unspoken, and except on a few rare occasions, it was unenforced.
During the time frame from the 1930s until his death in 1951, John Moran lived for the most part in New Haven. He made occasional and intermittent use of his property at Crescent Bluff. Based on the testimony, the court cannot conclude that Moran ousted the rear lot owners from possession, kept them out uninterruptedly for 15 years from 1933 to 1948 and did so under a claim of right by an open, visible, and exclusive possession and over the objections of the rear lot owners, whether by way of adverse possession or prescriptive easement. There is little evidence that any owners of lot 4 from 1933 forward to present time attempted to bar interior lot owners crossing the lot 4 area or from social usage of said area until the erection of the fence in 1996, which started the present controversy.
The plaintiffs also argue that the construction of the concrete ramp in front of Lots 2 and 4 is evidence of Moran's assertion of open, visible, and exclusive possession under a claim of right. The plaintiffs liken the construction of this ramp in 1939 to construction of a fence. The court dismisses this argument and concludes that the concrete ramp was constructed to avoid the risk of further erosion of the lawn from Long Island Sound and the impairment of the foundations of the houses Moran owned on lots 2, and 4 at that time. The testimony reflects that the concrete ramp did not impede the use of the rear lot owners and nor was it meant to. They simply walked over the concrete ramp to the water, whereas prior to that they walked over the existing lawn. The court also notes that the concrete slope was not constructed until following the hurricane of 1938. If this act is a determinative feature of the plaintiff's claim that Moran used this lawn area as exclusively his from 1933 to 1950, then he did not assert this right of exclusivity until 1939 CT Page 10878-hx by virtue of his construction of the wall and slope. The period from 1939 to 1950 would not meet the test for a 15-year adverse possession or prescriptive easement claim by Moran, himself.
The plaintiffs also claim that the defendants offered "virtually no evidence demonstrating that they have prescriptive easements to use the lawn in front of lot 4." Once again the court disagrees. The standard for proving prescriptive easements is preponderance of the evidence. See Reynolds v. Soffer, 190 Conn. 184, 188 (1983). The reason for this is stated in Schultz v. Syvertsen, 219 Conn. 81, 92 (1991). One merely gains the use of property and not the ownership of it with a prescriptive easement, creating a lesser burden of proof on those claiming the easement.
It is possible, to prove a prescriptive easement by inference, as the standard, unlike the adverse possession standard, is by fair preponderance of the evidence. In Gaul v. Nilva, 155 Conn. 218, 224 (1967), the Supreme Court held that "circumstantial evidence is adequate proof of a fact if the inference to be drawn from circumstantial evidence, in light of any other relevant evidence, is strong enough so that the trier may reasonably find that it is more probable than not that the fact to be inferred is true." Id. In addition, "proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact." Blados v. Blados, 151 Conn. 391, 395 (1964).
In Waterbury v. Washington, 260 Conn. 506, 576-77, 800 A.2d 1102 (2002) the court stated:
"We begin our analysis of this issue by setting forth the requirements for establishing a prescriptive easement. '[General Statutes §] 47-37 provides for the acquisition of an easement by adverse use, or prescription. That section provides: No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.' In applying that section, this court repeatedly has explained that '[a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.' Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993)." Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682 (1998). "The purpose of the open and visible requirement is to give "the owner of the servient land knowledge and full opportunity to CT Page 10878-hy assert his own rights." Klein v. DeRosa, 137 Conn. 586, 588-89, 79 A.2d 773 (1951). "To satisfy this requirement, the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature, and extent. Open generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent . . . An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it. A use that is not open but is so widely known in the community that the owner should be aware of it also satisfies the requirement." (Internal quotation marks omitted.) 1 Restatement (Third), Property, Servitudes § 2.17, p. 273 (2000).
Sec. 47-37 reads as follows:
No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereon unless the use has been continued uninterrupted for fifteen years.
(Internal quotation marks omitted.) Id. at 576-77.
"Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered." Klein v. DeRosa, supra, 137 Conn. 589. The court must not only find that the use was continuous and uninterrupted for fifteen years, but also that such use was open and visible under a claim of right. Hoffman Fuel Company of Danbury v. Elliott, 68 Conn. App. 272, 276-79, 789 A.2d 1149 (2002). "To be open, a use must be without attempted concealment . . . It must be so open, visible, and apparent that it gives the owner of the servient tenement knowledge and full opportunity to assert his rights. The circumstances of possession must be sufficient to put a prudent person upon inquiry." 25 Am.Jur.2d, Easements and Licenses § 60 (1996); Id. at 278. "It is for the party who seeks to establish an easement by user to exercise his claimed right so openly as to give the owner knowledge and full opportunity to assert his own rights." Id. at 277-78, quoting, Exley v. Gallivan, 96 Conn. 676, 679, 115 A. 482 (1921). The plaintiffs' or their predecessors in title's actual knowledge of the existence of the right-of-way is not a necessary element of the defendants' proof. See Robert S. Weiss Co. v. Mullins, 196 Conn. 614, 619, 495 A.2d 1006 (1985).
"A claim of prescriptive easement requires proof that the claimant's use of the property has been open, visible, continuous and uninterrupted for fifteen years under a claim of right . . . A claim of title by adverse possession requires a claimant to prove that the owners have been ousted from possession from the property in dispute for an uninterrupted period of fifteen years under a claim of right by an open, notorious and exclusive possession." (Citations omitted; emphasis added; internal quotation marks ommitted.) Hoffman Fuel Company of Danbury v. Elliot, supra, 68 Conn. App. 272, 284, n. 2; Francis v. Hollauer, 1 Conn. App. 693, 695-96, 475 A.2d 326 (1984). CT Page 10878-iz
The defendants must also prove that their use of the lawn areas was under a claim of right rather than permissive, and they have done so.
A use made under a claim of right is a use made without recognition of the rights of the owner of the servient tenement . . . The use must occur without license or permission and must be unaccompanied by a recognition of [the right of the owner of the servient tenement] to stop such use . . . The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement . . . Whether the requirements for [a claim of] right have been met in a particular case presents a question of fact for the trier of facts . . . The trier's determination of facts will be disturbed only when those findings are clearly erroneous.
(Citations omitted; internal quotation marks omitted.) Hoffman Fuel Company of Danbury v. Elliott, supra, 68 Conn. App. 279, quoting Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001).
Credible testimony was received that the lawn was used by both the interior lots owners and the front lot owners for passing and re-passing and recreational purposes from the 1930s to 1950, and more recently for passing and re-passing, sitting, and general recreational purposes from the early 1950s into 2001. This use was open, visible, continuous and uninterrupted and was with the knowledge of the owners of lots 1, 2, 3 and 4 from the 1930s until 1996. Testimony was received by the court, that although rear lot owners did not know the ownership status of the lawns, they believed that they had a right to use the lawn areas. While there was a shortage of specific dates, events or photographs of such activity in the earlier years for due to the many years' passage of time, such activity has been established by a fair preponderance of the evidence, especially from the late 1940s forward.
Testimony from various witnesses including, defendant Anne Verderame, as well as, Fusco-Hughes, and Miller, covered periods of time from the mid-1940s, through the mid-1960s. Others, including Verderame and Gennette testified to activities from the mid-1960s to the present. Gennette testified regarding the period of years between 1967 and 2000, and the court found his testimony to be credible. Joseph Millerick, a witness for the plaintiffs, identified the paths used by rear lot owners, and others, over the lawn areas and concrete slab over the years from 1958 until the fence was erected in 1996. Millerick has resided at CT Page 10878-ia the Crescent Bluff neighborhood, either part-time or full-time since 1958. His mother-in-law was Mrs. Walker, who purchased lot 4 from Moran in 1950. Millerick resided in that residence, and eventually sold it to Craig, the plaintiff's immediate predecessors in title. Millerick, at the time of trial, was the owner of one of the other waterfront lots at Crescent Bluff. The court finds testimony by many witnesses credible as to the uninterrupted crossing of the lawn by interior lot owners to reach the concrete ramp area and/or the seawall walkway over a 49-year period from 1947 through 1996 when the fence was constructed.
Millerick subsequently gained the fee title to lot 4, 2 Crescent Bluff Avenue, and sold it to William E. Craig, by Warranty Deed dated July 17, 1990. Millerick conveyed the same parcel that Moran had sold to Walker along with the same rights to the lawn that Moran had originally CT Page 10878-iy granted. A copy of the deed is included in the Appendix, attached hereto.
Testimony regarding use of the concrete slope and the lawn area abutting the slope for sitting, sunbathing and standing and conversing is also credible. It is less compelling, regarding an extensive use of the entire lawn areas for general recreational purposes other than these stated purposes, until the time this controversy first arose in 1996 and expanded in 1998. Evidence was received of a continuous use of the main lawn areas for general recreational activities from the mid-1940s until the present. The court finds that social and recreational use of the lawn have been proven by the defendants by the standard of a fair preponderance of the evidence for a period exceeding 15 years. The use was open and obvious and was not obstructed by waterfront lot owners.
The plaintiffs also argue that defendants make no showing how "all" rear lot owners and the "others" to whom they refer were in privity with one another sufficient to invoke the doctrine of tacking. They argue that the trial evidence clearly demonstrates defendants have not established prescriptive easements "for more than fifteen years before the commencement of this action."
Tacking is allowed on to the use of a prior adverse possessor and the principles can be applied to a claim for a prescriptive easement. The relevant citations to Appellate and Supreme Court opinions can be found in Jablonski v. Wilson, Superior Court, judicial district of Litchfield, Docket No. CV 95 0067071 (Nov. 10, 1997, Kocay, J.), which states:
The authoritative rule of tacking successive possessions for the acquisition of title after fifteen years is found in Smith v. Chapin, 31 Conn. 530 (1863). See Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527 (1967) . . . Privity of estate is not necessary, but rather, privity of possession. It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons. This was settled in Fanning v. Wilcox, 3 Day 258 [1808]. Doubtless the possession must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them; but such continuity and connection may be effected by any conveyance agreement or CT Page 10878-ib understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of possession in fact . . . Smith v. Chapin, supra, [ 31 Conn. 530], 531-32 [1863]. Privity of possession is defined as a continuity of actual possession, as between prior and present occupant, the possession of the latter succeeding the possession of the former under deed, grant, or other transfer or by operation of law. Vance v. Wood, 22 Or. 77, 85, 29 p. 73 (1892), citing Smith v. Chapin, supra; Matto v. Dan Beard, Inc., 15 Conn. App. 458, 479-80, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988).
"An adverse claimant may tack on his or her actual, exclusive, hostile, open and continuous possession to that of a prior adverse possessor to establish the requisite statutory period of fifteen years. Matto v. Dan Beard, Inc., supra, 15 Conn. App. 479-80. A party claiming title by adverse possession by virtue of tacking (i.e., combining a predecessor in title's use with the claimant's in order to meet the fifteen year requirement) must prove that the predecessor in title's use was adverse. Marquis v. Drost, 155 Conn. 327, 231 A.2d 527 (1967)." (Internal quotation marks omitted) Jablonski v. Wilson, supra.
The court, in determining that the defendants and their predecessors in titles to their various lots have established a prescriptive easement, acknowledges that direct evidence and testimony from the defendants' individual predecessors in title was not presented. The time span covered at trial included many years from the 1930s to the present. Death, infirmity, old age and the lack of knowledge of the whereabouts regarding predecessors in title are normal incidents when the span of time referred to is this long, even if we refer only to the fifteen-year period from 1981-82 through 1996-97. However, the circumstantial evidence at trial has established by a fair preponderance of the evidence that most, if not all, rear lot owners of Crescent Bluff utilized the lawn areas, including the lawn directly south of lot 4 to pass and re-pass to the concrete slope and the seawall walkway, as well as, to sit, converse and socialize on the slope and the grassy lawn areas near the slope. This behavior is consistent with the manner in which the defendants have utilized the lawn area, and is consistent with the manner in which residents acted as long ago as 1903, as confirmed by the Connecticut Supreme Court in Fisk v. Ley, supra.
Having determined that the defendants established a prescriptive easement over the lawn in front of lot 4, the court must determine the extent and scope of the easement. "The extent of the right acquired is measured by the extent to which the claim was asserted and maintained." Waterbury v. Washington, supra, 260 Conn. 584-85. "A prescriptive right CT Page 10878-ic cannot be acquired unless the use defines its bounds with reasonable certainty." Kaiko v. Dolinger, 184 Conn. 509, 511, 440 A.2d 198 (1981); Kelley v. Tomas, 66 Conn. App. 146, 783 A.2d 1226 (2001). "The burden of proof rests upon the defendants, who claim the right-of-way as a special defense, to show the existence of all facts necessary to prove the right-of-way . . ." Branch v. Occhionero, 239 Conn. 199, 205, 681 A.2d 306 (1996).
"The determination of the scope of a prescriptive easement is a question of fact . . . [W]hen an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it . . . The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit . . . An owner of an easement has all rights incident or necessary to its proper enjoyment of the easement . . . [O]ne who has an easement by prescription has the right to do such acts that are reasonable and necessary to effectuate that party's enjoyment of the easement unless it unreasonably increases the burden on the servient tenement." (Citations omitted; internal quotation marks omitted.) Hoffman Fuel Company of Danbury v. Elliott, supra, 68 Conn. App. 272, 283; McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 755-56, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).
"We have said that '[t]he right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both. 2 Thompson, Real Property (1980 Replacement) 427.'" Peterson v. Oxford, 189 Conn. 740, 459 A.2d 100 (1983); Kuras v. Kope, 205 Conn. 332, 533 A.2d 1202 (1987). "Even though the common and ordinary use which establishes the prescriptive right also limits and qualifies it, as one court aptly observed, 'the use made during the prescriptive period does not fix the scope of the easement eternally.' Id. at 342-43; quoting, Glenn v. Poole, 12 Mass. App. 292, 293, 423 N.E.2d 1030 (1981). "Another authority has said: 'Since, however, no use can ever be exactly duplicated, some variation between the use by which a prescriptive easement was created and the uses made under it after its creation is inevitable. The problem is to ascertain the limits of permissible variation.' 3 R. Powell, Real Property (1987 Rev.) 416, pp. 34-204-05." Kuras v. Kope, supra at 342-43.
"It therefore appears that one who has a prescriptive easement has the privilege to do such acts as are reasonably necessary to make effective his enjoyment of the easement unless the burden on the servient tenement is thereby increased." Id.; Nichols v. Peck, 70 Conn. 439, 441, 39 A. 803 CT Page 10878-id (1898); 5 Restatement, Property 480.
In defining the scope of the defendants' prescriptive easement, the court has visited the Crescent Bluff site and is sensitive to the short distance that exists from the plaintiffs' house to the concrete slope leading to the seawall walkway. The grassy portion of the lawn area south of lot 4 is not large, yet the court must balance the defendants' rights to pass and re-pass, sit, converse and socialize as contemplated in Fisk v. Ley, while at the same time recognizing the plaintiffs' right to enjoy their property with some semblance of privacy and security for themselves and their family, as well as those of the plaintiffs' heirs, successors and assigns. The court believes that the Connecticut Supreme Court in 1903 never contemplated the use of this lawn by rear lot owners for cook-outs, camping, golfing and soccer or football. Indeed, the historical pattern of activity which occurred at Crescent Bluff was the use of the lawn areas in front of lots 2 and 4, for passing and re-passing to the concrete slope and down the slope to the seawall walkway and the water. Residents would also sit in on the grassy portion of the lawn area or on the slope to socialize and converse and gaze at the sea.
The need for passing and re-passing over the lawn area at lot 4 has been lessened for the present, by the one-time construction of the new concrete stairs at the end of the "Avenue" lawn area by Lowlicht and Craig in 1996. The additional lawn area directly at the end of Crescent Bluff Avenue, which is not in dispute, also contains space for residents to sit, converse, socialize, play and picnic. The new stairs allow direct access to the seawall walkway, which certainly would seem more convenient than climbing down the concrete slope. However, there are no guarantees that these stairs will not fall into disrepair as the steady surge of the sea continues to cause wear and tear. Under the present circumstances it is unknown and unresolved as to who will repair these stairs in the future, and it may well be, that in years to come, the only access to the seawall walkway and Long Island Sound will be once again be across the lawn area south of lot 4. It is for this reason that the court is sensitive in defining the limits of the defendants' prescriptive easement. In deference to the plaintiffs, however, the use of the easement must be narrowed and more limited than perhaps the defendants would like. In doing this, the court believes it is acting in the true spirit and intent of all Crescent Bluff lot owners as it existed from the 1930s into the early 1990s. The acrimony and confrontational behavior which has infected the resident lot owners of Crescent Bluff in the recent years is on the verge of destroying this neighborhood as a beautiful waterfront neighborhood that has sustained itself, thus far, for over 100 years. The court, as noted, recognizes the implied easement CT Page 10878-ie granted by the Connecticut Supreme Court in Fisk v. Ley, supra, and realizes that in defining the scope of this prescriptive easement, it cannot negate any larger rights granted to the defendants by Fisk v. Ley, supra, 76 Conn. 295. The rights set forth in defining the scope of the court's prescriptive easement are additional to the implied easement rights set forth in Fisk v. Ley, supra. Where the terms and scope of this prescriptive easement, as stated, may be interpreted as limiting the implied easement rights granted by Fisk v. Ley, supra, these rights shall be subordinate to any greater rights granted by Fisk v. Ley, supra, as long as that decision remains binding on this court and the parties hereto.
The court orders that the defendants shall have a prescriptive easement measuring 8 feet in width over the grassy portion of the lawn area directly south of lot 4, at the premises known as 2 Crescent Bluff Avenue, where said grassy portion of the lawn adjoins the concrete slope. Said easement area shall also include the concrete slope area at the southern end of said lawn to Long Island Sound. Said prescriptive easement shall be for the purposes of passing and re-passing to the concrete slope, as well as, traversing said concrete slope to the seawall walkway and Long Island Sound and back again and for the additional uses of sitting and social activity from the hours of 9 a.m. until 9 p.m. The plaintiffs shall erect no barriers, fences or other obstructions to prevent the defendants from the use and enjoyment of this prescriptive easement. Nothing stated herein shall limit any present rights that the defendants may currently have and enjoy in the use of the seawall walkway. The limitations herein apply solely to the 8-foot strip of lawn area and concrete slope being a portion of the so described "Second Piece" referred to in "Schedule A" in a quitclaim deed from Roger A. Lowlicht and Kay A. Haedicke to James R.G. McBurney and Erin E. McBurney dated May 18, 1998 and recorded in the Branford Town Clerk's Office on May 21, 1998, in Volume 649 at Page 122. Said prescriptive easement is bounded and described as follows:
All that certain piece or parcel of land, situated in the Town of Branford, County of New Haven, State of Connecticut, and shown on being the majority of the parcel labeled "N/F John Moran" on a map entitled "Property Survey, land of William B. Susan H. Craig, 2 Crescent Bluff Avenue, Pine Orchard, Branford, Connecticut" by LWF Land Surveying, scale 1" = 10', dated July 1997 and revised September 8, 1997, which map is to be filed herewith in the Branford Town Clerk's Office, said easement being more particularly bounded and described as follows:
Commencing at a point in the Westerly street line of Crescent Bluff CT Page 10878-if Avenue, said point being the Southwesterly corner of the concrete steps shown on said map;
Thence running S 12deg;-39'-00" W 39 feet more or less, along the Westerly edge of said concrete steps to Long Island Sound;
Thence running Westerly 43 feet, more or less, along the Mean High Water line of Long Island Sound;
Thence running N 12deg;-39'-00" E 39.0 feet, more or less, along premises known as #6 Crescent Bluff Avenue;
Thence running S 77°-21'-00" E 45.00 feet along said #2 Crescent Bluff Avenue, to the point and place of commencement.
D.
The Property Agreement and Claims of Mutual Mistake
Having determined that each defendant has an implied easement and a prescriptive easement over the lawn area directly south of lot 4, the court must determine whether defendants Cirillo and Baldwin have released and quitclaimed those rights by virtue of their signing the Property Agreement in September 1996. The plaintiffs argue that because defendants Cirillo and Baldwin signed the "Property Agreement" in September 1996 with Craig and Lowlicht, these defendants quitclaimed any use easement they may have had regarding the lawn south of the McBurney property on lot 4, owned by the plaintiffs since May 18, 1996. The Property Agreement, by its language, purports to divest these defendants of any right, title or interest in the lawn area south of lot 4. As a result, the plaintiffs contend, these defendants may claim no further interest or right in the use of the lawn area south of lot 4, which has also been referred to as the "Second Piece" on the quitclaim deed from Lowlicht and Haedicke to the plaintiffs McBurney.
A copy of the Property Agreement is included in the Appendix, attached hereto.
The terms of the Property Agreement, as it applies to the lawn area south of lot 4 between these defendants, Lowlicht, and Haedicke, the owners of lot 2 and 6, and William Craig, the McBurneys' predecessor in lot 4, specifically provided that:
NOW, THEREFORE, in order to induce the owners of Lot 2 and Lot 4 to make improvements presently needed to said sidewalk and to not impede or impair the undersigneds' access thereto, the undersigned hereby covenant and agree as follows: CT Page 10878-ig
Whereas, title to the land lying southerly of the above described parcels (sometimes known as "The Lawn") between said parcels and Long Island Sound is in doubt; and
Whereas, the southerly most portion of the Lawn consists of a sidewalk and other improvements in which the undersigned may claim a right to pass and repass over; and
Whereas, the undersigned wish to maintain and enhance their access to and enjoyment of said sidewalk and other improvements located at the southerly end of The Lawn;
Now, Therefore, in order to induce the owners of Lot 2 and Lot 4 to make improvements presently needed to said sidewalk and not to impede or impair the undersigneds' access thereto, the undersigned hereby covenant and agree as follows.
2. We hereby remise, release and quitclaim to the owners of Lot 4 and their successors and assigns all of our right title and interest in and to that portion of The Lawn lying between the southerly extensions of the east and west boundaries of Lot 4 and being bounded on the north by Lot 4 and on the south by the existing sidewalk, hereby expressly retaining whatever rights we may have in and to said sidewalk . . .
As to the effect of the Property Agreement on the defendants Cirillo and Baldwin, the court is limited to deciding only the defendants' rights as to the plaintiffs' lot 4 lawn area. Lowlicht's and Haedicke's ownership claims to the lawn south of lot 2 and the defendants' rights to cross and use that area is not the subject of this action. Lowlicht and Haedicke are parties to a companion action awaiting trial, but they are not parties to this action. The court, however, in discussing its reasoning and findings, comments on the facts as they pertain to Lowlicht and the lawn south of lot 2, as well as lot 4 to place the circumstances of the signing of this agreement by the parties hereto, in the proper context.
In their Third Special Defense to the plaintiffs' trespass claim, the Cirillos and Baldwins allege that the Property Agreement was "procured by fraudulent misrepresentations and fraudulent non-disclosure by Craig and Lowlicht concerning the status of title to the portion of the property in question and the rights of the defendants to use said property as stated in paragraph 3 of the first special defense herein . . ." Consequently, those defendants allege the "Property Agreement" is unenforceable against them. However, the defendants in their initial brief and reply brief have addressed only a claim of "mutual mistake." CT Page 10878-ih They have not further, addressed fraudulent misrepresentation or fraudulent non-disclosure. The court summoned counsel for the parties to a conference on September 4, 2003, to clarify certain claims set forth in their pleadings and briefs, and the court was informed that the defendants had abandoned their claims of fraudulent mis-representation and fraudulent non-disclosure. The court, therefore, will treat these claims as abandoned and will not address them.
Paragraph 3 alleges: "At all times herein mentioned the defendants have had a private right or easement appurtenant to their lands to use what is depicted on the plan as the 'Lawn' for all such purposes as might reasonably serve their convenience."
In September 1996, William Craig, a predecessor in title to the plaintiffs McBurney, prepared for distribution by Roger Lowlicht a "property agreement," as described in detail in this decision. The agreement recites that title to the land lying south of Lot 2 and Lot 4 on the 1885 Baker map, known as "The Lawn," between Lot 2 and Lot 4 and Long Island Sound "is in doubt." As a result of this, and in consideration of Craig and Lowlicht making repairs to the seawall and concrete steps on a one-time basis, all signers of the "Property Agreement" gave up any right they may have had to use of the lawn area south of Lots 2 and 4 to Long Island Sound to the "owners of lot 4 and their successors and assigns." The defendants argue that "It is extraordinary that the document has the rear lot owners giving up their rights permanently for a promise to make one-time repairs 'presently needed to said sidewalk.'"
The defendants also claim that aside from the "lopsided" nature of the agreement, at the time the document was drafted, circulated and signed, none of the parties, Lowlicht, Craig, or any of the signers, had any idea of the existence of the Connecticut Supreme Court's 1903 decision in Fisk v. Ley, supra, and its relevance to the rights of the lot owners on the Baker map to use the lawn area by way of an implied easement. Indeed, pursuant to Fisk v. Ley, title to the disputed lawn areas south of lots 2 and 4 was irrelevant. The decision established an unequivocal right to use the lawn area in question "for all such purposes as might reasonably serve the convenience of an adjoining proprietor." The defendants conclude by arguing there was a total misunderstanding as to the rights of the parties, which was central to the execution of the agreement, and had Mr. and Mrs. Cirillo and Mr. and Mrs. Baldwin known of the provisions of Fisk v. Ley, they would not have signed the property agreement.
Defendants state that Fisk v. Ley, supra, 76 Conn. 295, affirmed that the "1885 Baker Plan" gave rear lot owners the right to use the entire Lawn area for any purpose. The defendants Cirillo and Baldwin maintain that prior to learning of Fisk v. Ley, supra, they were unaware of their rights to use the Lawn, and thus entered into the Property Agreement under such a mistaken belief. However, that claim is contradicted by their trial testimony. CT Page 10878-ii
Baldwin and Cirillo both testified they believed they had rights to use the lawn area in front of the plaintiffs' property prior to learning of Fisk v. Ley, supra. Moreover, Lowlicht testified that even if he'd known about Fisk v. Ley, supra, prior to September 1996, when the agreement was executed, he would still likely have pursued the agreement. In short, the evidence demonstrates Baldwin and Cirillo already knew what Fisk v. Ley, supra, later purported to tell them, and further demonstrates that knowledge of Fisk v. Ley, supra, was immaterial to Lowlicht in contracting with defendants to repair the sea wall area.
Craig was under the belief in September 1996 that the rear lot owners of Crescent Bluff had possible easement rights to the lawn area, and Craig was aware that he did not own the lawn area in dispute. Accordingly, knowledge of Fisk v. Ley, supra, was irrelevant to the contracting parties in September 1996, and their ignorance of it does not constitute a mutual mistake affecting the intended result of the Property Agreement.
Further, the Property Agreement effected the result intended by the parties, as reflected in the agreement. "A mutual mistake is one that is common to both parties and effects a result that neither intended." Magowan v. Magowan, 73 Conn. App. 733, 739, 812 A.2d 30 (2002); Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn. App. 760, 765, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992), citing Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981). Whether there has been such a mistake is a question of fact. Rodriguez v. State, 76 Conn. App. 614, 624-25, 820 A.2d 1097; Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., supra 28 Conn. App. 765. The factual predicate is that the plaintiff would have to prove that both parties bargained based upon the same mistaken understanding. HLO Land Ownership A. Ltd. v. Hartford, 248 Conn. 350, 362, 727 A.2d 1260 (1999); see also, Buol Machine Co. v. Buckens, 146 Conn. 639, 641, 153 A.2d 826 (1959) ("[r]escission of a contract on the ground of mutual mistake may be granted in a proper case where the mistake is common to both parties and by reason of it each has done what neither intended").
Here, the express language of the agreement makes clear that the parties intended the exchange of all defendants' rights, titles or interests in the lawn southerly of lot 4 in return for Lowlicht and Craig's promise to fix the sea wall and concrete stairs. Defendants signed the agreement, and it operated to that effect. Craig and Lowlicht kept their end of the bargain and expended their monies to effectuate the repairs. It is significant that the agreement reserves whatever rights the defendants Baldwin and Cirillo had in the walk at the seawall. It is CT Page 10878-ij unsupportable for defendants to argue that the agreement had any purpose other than that stated explicitly on its face or that it was "lopsided." The result of the Property Agreement was the one intended by the parties. The defendants have not demonstrated any mutual mistake operating to void that agreement.
Even if defendants claim they did not fully comprehend their rights regarding lot 4, it is well established that mutual mistake is not a defense where parties knowingly sign an agreement with imperfect knowledge of their rights. "[T]he principles governing the law of mistake are set out in 1 Restatement Contracts (Second), §§ 153 and 154. Under § 153, a unilateral mistake may make a contract voidable if the mistaken party "does not bear the risk of the mistake under the rule stated in § 154 . . ." 1 Restatement Contracts (Second), supra, § 153, p. 394. "Under § 154, 'A party bears the risk of a mistake when . . . (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient . . .' 1 Restatement Contracts (Second), supra, § 154, pp. 402-03." Shoreline Communications, Inc. v. Norwich Taxi, 70 Conn. App. 60, 65-66, 797 A.2d 1165 (2002); See, Restatement 2d Contracts §§ 153-54 (1981 and Supp. 2001)
The trial evidence is contrary to defendants' claim that the parties signed the Property Agreement under a mutual mistake. Moreover, because the agreement achieved the result manifestly stated on its face to convey property rights in exchange for consideration, mutual mistake does not operate to void the agreement. Under those circumstances, defendants have not proved a special defense of mutual mistake as that defense relates to Fisk v. Ley, supra.
The defendants Baldwin and Cirillo maintain that the Property Agreement was "lopsided," in that they were giving up their rights to use the lawn area for all time in exchange for a one-time repair of the seawall and steps by Lowlicht and Craig. They imply that the agreement was unconscionable. "As a general matter, we know of no case, and the defendant has cited none, in which a party may invoke unconscionability without a showing of some kind of relevant misconduct by the party seeking enforcement of a contract." Shoreline Communications, Inc. v. Norwich Taxi, supra, 70 Conn. App. 60, 70. "Many of the unconscionability cases arise in the context of some kind of misleading conduct that comes close to being fraudulent. Under the law of procedural unconscionability, such contracts may be voidable by an innocent party who has been misled about the advisability of entering into a contract." Id. at 71; See 1 Restatement Contracts (Second), supra, § 153. The CT Page 10878-ik evidence presented at trial does not support misleading conduct by either Lowlicht or Craig that approaches fraud in the drafting and signing of the "Property Agreement" in September 1996. Neither Craig or Lowlicht knew of Fisk v. Ley, supra, in 1996. All parties to the agreement including Lowlicht, Craig, and the defendants Cirillo and Baldwin, were unsure as to what "legal rights" the defendants had to pass over the lawn areas to the south of their lots 4 and 2. In fact, the evidence shows Lowlicht and Craig, as well as, the defendants were uncertain as to the ownership of these lots. The language of the written agreement reflects that the rights of the parties thereto, were "in doubt." Unconscionability is not an issue in determining the validity of the "Property Agreement" of September 1996.
Another issue that the court confronts when determining if rescission of the agreement is appropriate is whether the parties could be put back into substantially the same situation they were, prior to the agreement. The wall and concrete stairs have been rebuilt at a monetary cost to Craig. Courts are reluctant to rescind under these circumstances and would give relief only where the "clearest and strongest equity imperatively demands it." Milford Yacht Realty Co. v. Milford Yacht Club, Inc., 136 Conn. 544, 549, 72 A.2d 482 (1950). Also, a condition precedent to rescission is the offer to restore the other party to its former condition as nearly as possible. Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977); Keyes v. Brown, 155 Conn. 469, 476, 232 A.2d 486 (1967). Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 478 A.2d 257 (1984) (fn6]. No rear lot owners or defendants, including Baldwin and Cirillo, offered to reimburse Craig for his expenditure for the repairs in exchange for rescinding the agreement; nor did they offer to contribute monetary sums on a pro rata or other type of cost sharing basis.
Finally, when reviewing the defendants' claim of mutual mistake, the court notes that if the defendants Cirillo and Baldwin establish their special defense of mutual mistake, the court should determine whether they sought a timely rescission of the contract. The defendants verbally demanded in October 1996, that Craig and Lowlicht return the signed Property Agreement to them, and then several months later demanded the same in writing. The defendants, including Baldwin and Cirillo, have asserted their special defenses in the present actions, which were commenced against Cirillo in 1998 and Baldwin in 1999, but in the period between the signing of the agreement in September 1996, and the assertion of their special defense, the defendants commenced no actions to rescind the agreement or to have it declared invalid.
Craig was not the owner of the lawn area directly south of lot 4, in September 1996. The Estate of Moran, as found herein, owned this property CT Page 10878-il until the fiduciary's deed was given to Lowlicht and Haedicke on May 1, 1998. At issue, though not raised by the defendants, is whether Craig, despite a lack of title, could enter into the agreement with Cirillo and Baldwin regarding the release of Balwin's and Cirillo's rights in this property. A further issue is whether the plaintiffs, who acquired title on May 18, 1998, and were not an original party to the agreement, can enforce its terms against defendants Cirillo and Baldwin, as third-party beneficiaries of the agreement.
As to the first issue regarding Craig's lack of title to the disputed lawn area south of lot 4 in 1996, the court finds that title to the lawn area is not determinative, as it relates to the validity of the Property Agreement. The intent of the parties to a contract is determined from the language used as interpreted in light of the circumstances and in light of the purpose which the parties sought to accomplish. Page v. Page, 77 Conn. App. 748, 749, 822 A.2d 366 (2003). "The question is not what intention existed in the minds of the parties but what intention is expressed in the language used . . . The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract . . . The construction of a contract cannot be varied because of inconvenience to the parties . . . The intent expressed by the parties must be given effect." (Citations omitted; internal quotation marks omitted.) Radding v. Freedom Choice Mortgage, 76 Conn. App. 366, 370, 820 A.2d 317 (2003): quoting, Anderson v. Pension Retirement Board, 167 Conn. 352, 354-56, 355 A.2d 283 (1974).
The language of the Property Agreement clearly stated that title to the property was "in doubt." The intent of the agreement was that Craig, along with Lowlicht, would make the necessary repairs to the seawall and walkway, in exchange for Cirillo and Baldwin releasing their rights to pass over and use the disputed lawn area south of lot 4. The agreement also noted that, despite the "in doubt" status of this property in September 1996, Baldwin and Cirillo agreed that this agreement was binding on them, as against the "owners of lot 4 and their successors and assigns."
The plaintiffs, as owners of lot 4 since May 1998, are now seeking to enforce the agreement against Baldwin and Cirillo as third party beneficiaries of the agreement. The law regarding the creation of contract rights in third parties in Connecticut is well settled. In Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963), the court quoted Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950), and reaffirmed that "[t]he ultimate test to be applied [in determining whether a person has a right CT Page 10878-im of action as a third-party beneficiary] is whether the intent of the parties to the contract was that the promissor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties." (Emphasis added; internal quotation marks omitted.) Grigerik v. Sharpe, 247 Conn. 293, 311-12 (1998), 721 A.2d 526 (1998) "The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee." Id. The plain and unambiguous language of the agreement states that the defendants released and quitclaimed their rights to title and interest in the disputed lawn area to the "owners of lot 4, their successors and assigns." It is logical to find that Craig, Baldwin and Cirillo understood that there had to be an owner of the lawn, even though the present identity was "in doubt," and that once title rights were determined, the defendants would be bound to that owner. The plaintiffs are now the owners of the disputed property and can enforce the terms of the agreement against these defendants. "[C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law . . . Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement . . ." (Internal quotation marks omitted.) Detar v. Coast Venture XXVX, Inc., 74 Conn. App. 319, 322, 811 A.2d 273 (2002); quoting, Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000)." Id., 505-06.
The court, therefore, finds the issue of mutual mistake for the plaintiffs and denies the defendants Cirillo's and Baldwin's special defense of mutual mistake. Defendants Frank Cirillo, Susan Cirillo, James G. Baldwin, Jr. and JoAnn F. Baldwin by signing the Property Agreement have effectively quitclaimed and released any rights they may have had to an implied easement granted to them by the Connecticut Supreme Court in Fisk v. Ley, supra, 76 Conn. 295, as well as, the prescriptive easement granted to them by the decision of this court. The court does note, CT Page 10878-in however, that in signing the agreement, no where therein, do the Baldwins or Cirillos state that it is their intent to bind their heirs, successors and assigns to the agreement. The court leaves the determination of those rights to another day, should a further dispute arise in the future.
E.
The Trespassing Claims
Having found that the plaintiffs gained title to the lawn area south of lot 4 on May 18, 1998, as a result of their receipt of the deed by Lowlicht and Haedicke; and having found that the September 1996 property agreement is enforceable against the defendants Baldwin and Cirillo, the court moves next to determining whether these defendants committed acts of trespassing and whether the plaintiffs' claim for injunctive relief is warranted.
A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so. "The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn. Sup. 424, 427, 657 A.2d 732 (1994) ( 11 Conn.L.Rptr. 349); Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916); 75 Am.Jur.2nd, Trespass §§ 3, 8, 14, 25, 35. "The invasion, intrusion or entry must be physical. As stated at 75 Am.Jur.2nd, Trespass § 35, [b]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land." (Internal quotation marks omitted) Id. at 427-28.
A decision to grant or deny an injunction must be compatible with the equities in the case and balance the injury complained of with that which will result from interference by injunction. Marquardt Roche/Meditz H.V. Riverbend E. Ct., 74 Conn. App. 412, 421, 812 A.2d 175 (2003); Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972); Ralph v. Vogeler, 45 Conn. App. 56, 62, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).[2] "The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer CT Page 10878-io irreparable harm." (Internal quotation marks omitted.) Marquardt Roche/Meditz H.V. Riverbend E. Ct., supra, 74 Conn. App. 412, 421-22; quoting, Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001).[3]
The plaintiffs received this deed giving them the ownership of this area on May 18, 1998. Therefore, the plaintiffs' right to exclude the Baldwins and the Cirillos commenced with this ownership, and not upon the signing of the Property Agreement in September 1996. Prior to May 18, 1998, title had been possessed by the Estate of Moran, and the estate is not a complaining party against the Baldwins and Cirillos. For the defendants' trespassing to be intentional, the defendants had to be on notice that, in fact, the plaintiffs had gained these recent ownership rights. Without this notice of ownership by the plaintiffs, the defendants could not intentionally, with the requisite knowledge, intrude on property owned by these plaintiffs.
The court finds that Mr. and Mrs. Cirillo were informed by the plaintiffs on June 27, 1998, of their ownership. The Cirillos were sitting on the lawn area directly south of lot 4. The plaintiffs demanded that they leave and the Cirillos refused. At that time, they became trespassers. Thereafter, suit was instituted by the plaintiffs against the Cirillos by way of a complaint dated June 30, 1998. The Cirillos have continued to pass across the plaintiffs' property subsequent to that date. At trial on November 19, 2002, Frank Cirillo testified that he continued to use the concrete slope. The court finds that Frank Cirillo and Susan Cirillo have trespassed on the plaintiff's property prior to the institution of the action against them and continue to do so. The plaintiffs' request for injunctive relief to prevent further acts of trespassing as against Frank Cirillo and Susan Cirillo is granted, as more fully set forth in that section regarding the orders of the court.
The court finds that James Baldwin, Jr. and Joann F. Baldwin had notice of the plaintiffs' ownership interests in said lawn area as early as June 26, 1998, and again in October 1998 when they were asked to move from the property, first by Erin McBurney and later by James McBurney. Since the institution of the legal action by the plaintiffs against the Baldwins in January 20, 1999, the evidence does not establish that the Baldwins have committed further incidents of trespassing. Thus, the plaintiffs' request for injunctive relief as against James Baldwin, Jr. and Joann Baldwin is hereby denied.
V.
FINDINGS, VERDICT AND ORDERS OF THE COURT CT Page 10878-ip
A. Summary of Findings
1. The defendants lack standing to challenge the New Haven Probate Court's orders and decrees, wherein the Estate of John Moran, deceased, was re-opened, and the Administrator, d.b.n., c.t.a. was thereafter authorized to sell the lawn area directly south of lot 4 to Roger Lowlicht and Kay Haedicke by way of the Fiduciary's Deed dated May 1, 1998;
2. Title to the lawn area directly south of lot 4 at 2 Crescent Bluff Avenue, Branford, Connecticut, more fully described as the "Second Piece" in a quitclaim deed from Roger A. Lowlict and Kay A. Haedicke to Erin E. McBurney and James R.G. McBurney, dated May 18, 1998, is in said James R.G. McBurney and Erin E. McBurney by virtue of said quitclaim deed.
3. Interior rear lot owners at Crescent Bluff, shown on the "1885 Baker Plan," have an implied easement over said Second Piece of lot 4, by virtue of the decision in Fisk v. Ley, supra, 76 Conn. 295.
4. The defendants Cirillos, Baldwins, Verderames and Paquins, thereafter, acquired a prescriptive easement over that portion of lot 4, also known as the "Second Piece," as set forth herein. Said prescriptive easement rights are in addition to, and not meant to limit any greater rights that the defendants may have by virtue of the implied easement rights set forth in Fisk v. Ley, supra, 76 Conn. 295.
5. The defendants James Baldwin, Jr., JoAnn Baldwin, Susan Cirillo and Frank Cirillo have released and quitclaimed any implied or prescriptive easement rights that they have over the "Second Piece" of lot 4 at 2 Crescent Bluff Avenue, Branford, Connecticut, by signing the Property Agreement. James Baldwin signed said Property Agreement on September 9, 1996, while JoAnn Baldwin, Susan Cirillo and Frank Cirillo signed said agreement on September 5, 1996.
B. The Verdicts
Docket No. CV 98 0414820
JAMES McBurney ET AL. v. FRANK A. CIRILLO and SUSAN CIRILLO
FIRST COUNT OF AMENDED COMPLAINT
The court finds in favor of the plaintiffs James R.G. McBurney and Erin E. McBurney on the First Count of the plaintiffs' Amended Complaint CT Page 10878-iq alleging trespassing, as against defendants Susan Cirillo and Frank Cirillo.
SECOND COUNT OF AMENDED COMPLAINT
The court finds for the defendants as against the plaintiffs, regarding the allegations of the Second Count of the plaintiffs' Amended Complaint.
ORDERS REGARDING INJUNCTIVE RELIEF
The court hereby grants the plaintiffs' requests for injunctive relief as against defendants Susan Cirillo and Frank Cirillo and hereby orders that said defendants are restrained and enjoined from entering onto the plaintiffs' premises at 2 Crescent Bluff Avenue, Branford, Connecticut, including the lawn area and concrete slope, directly south of lot 4, said lawn area and slope being a part of the "Second Piece" more fully bounded and described in a quitclaim deed from Roger Lowlicht and Kay Haedicke to James R.G. McBurney and Erin E. McBurney, dated May 18, 2002 and recorded May 21, 1998 in Volume 649, Page 122, at the Branford Town Clerk's Office.
DOCKET NO. CV 99 0422100
JAMES McBURNEY ET AL. v. JAMES C. BALDWIN and JOANN BALDWIN
FIRST COUNT OF AMENDED COMPLAINT
The court finds in favor of the plaintiffs James R.G. McBurney and Erin E. McBurney on the First Count of the Amended Complaint alleging trespassing, as against defendants James Baldwin and JoAnn Baldwin.
SECOND COUNT OF AMENDED COMPLAINT
The court finds for the defendants as against the plaintiffs regarding the allegations of the Second Count of the plaintiffs' Amended Complaint.
ORDERS REGARDING INJUNCTIVE RELIEF
The plaintiffs' request for injunctive relief as to defendants James Baldwin, Jr. and Joann Baldwin is hereby denied for the reasons set forth in the court's findings.
DOCKET NO. CV 01 0455411 CT Page 10878-ir
JAMES R.G. McBURNEY ET AL. v. PETER P. PAQUIN and SUZANNE PAQUIN
FIRST COUNT OF AMENDED COMPLAINT
The court finds in favor of the defendants Peter P. Paquin and Suzanne Paquin, as against the plaintiffs James R.G. McBurney and Erin E. McBurney on the First Count of the plaintiffs' Amended Complaint alleging trespassing.
SECOND COUNT OF AMENDED COMPLAINT
The court finds for the defendants as against the plaintiffs regarding the allegations of the Second Count of the plaintiffs' Amended Complaint dated November 18, 2002.
AS TO THE DEFENDANTS' COUNTERCLAIM
The court finds for the defendants' on their Counterclaim, claiming a prescriptive easement, as against the plaintiffs.
ORDERS REGARDING INJUNCTIVE RELIEF
The plaintiffs' request for injunctive relief as to defendants Peter P. Paquin and Suzanne Paquin is hereby denied.
DOCKET NO. CV 99 0422102
JAMES R.G. McBURNEY ET AL. v. ANTOINETTE and SALVATORE VERDERAME
FIRST COUNT OF AMENDED COMPLAINT
The court finds in favor of the defendants Antoinette F. Verderame and Salvatore Verderame, as against the plaintiffs James R.G. McBurney and Erin E. McBurney on the First Count of the plaintiffs' Amended Complaint alleging trespassing.
SECOND COUNT OF AMENDED COMPLAINT
The court finds for the defendants as against the plaintiffs regarding the allegations of the Second Count of the plaintiffs' Amended Complaint.
THE DEFENDANTS' COUNTERCLAIM CT Page 10878-is
The court finds for the defendants' on their Counterclaim, claiming a prescriptive easement, as against the plaintiffs.
ORDERS REGARDING INJUNCTIVE RELIEF
The plaintiffs' request for injunctive relief as to defendants Antoinette F. Verderame and Salvatore Verderame is hereby denied.
Judgment shall enter in accordance with the foregoing verdicts and orders of the court.
THE COURT
Richard E. Arnold, Judge
APPENDIX
1. Copy of the "1885 Plan of 35 Building Lots" belonging to E.B. Baker, Trustee located at Pine Orchard, Branford, Connecticut.
2. Copy of deed from John Moran to Margaret F. Walker, dated September 30, 1950.
3. Copy of Fiduciary's Deed ("Administrator's Deed") from the Estate of John Moran to Roger A. Lowlicht and Kay A. Haedicke, dated May 1, 1998.
4. Copy of Quitclaim Deed from Roger A. Lowlicht and Kay A. Haedicke to James R.G. McBurney and Erin E. McBurney, dated May 18, 1998.
5. Copy of Deed from William and Susan Craig to James R.G. McBurney and Erin E. McBurney, dated September 16, 1997.
6. Copy of Will of John Moran dated December 28, 1950.
7. Copy of Deed from Joseph Millerick to William Craig, dated July 17, 1990
8. Copy of Property Agreement September 1996