Opinion
No. CV 03 0091863
April 3, 2006
MEMORANDUM OF DECISION
I
This is an action for adverse possession and prescriptive easement brought by way of writ, summons and complaint dated November 7, 2003. The plaintiffs, Theodore B. Mulle and Denise D. Mulle, hereinafter referred to as the "plaintiffs," are record title owners of a certain parcel of land situated in the Town of New Milford, County of Litchfield, State of Connecticut, commonly known as 201 Aspetuck Ridge Road, hereinafter referred to as "201." The defendants, Brian McCauley and Miyako Kinoshita, hereinafter referred to as the "defendants," are record owners of a certain parcel of land situated in the Town of New Milford, County of Litchfield, State of Connecticut, commonly known as 193 Aspetuck Ridge Road, hereinafter referred to as "193."
By way of substitute complaint dated February 17, 2005, the plaintiffs seek a decree determining the rights of the parties as to a portion of "193" as depicted on plaintiffs' exhibit 12, identified as "area claimed by Denise D. and Theodore B. Mulle, Jr. 0.262 acres 11,397 S.F.," hereinafter referred to as the "disputed area." The disputed area comprises the north portion of 193 and extends in an east-west direction all the way from the front of 193 on Aspetuck Ridge Road to the rear westerly border of 193.
II
A majority of the relevant facts in this case are not in dispute. The plaintiffs purchased 201 from Rosemary M. Jejer on December 20, 2000. Rosemary Jejer came into possession of 201 in 1950 when she and her then husband, Philip Jejer acquired 201 from Philip's parents, Frank and Daisy Jejer. Although Rosemary and Philip divorced in 1986, Rosemary continuously owned and occupied 201 from 1950 until December of 2000 when the property was sold to the plaintiffs.
The defendants purchased 193 from Francis Hill on April 21, 2003. Francis Hill received 193 by warranty deed from her mother, Daisy Jejer on June 21, 1984. Up until approximately that date, Daisy Jejer resided at 193. After her acquisition of 193, Francis Hill rented 193 to various tenants. From 1984 up until the time of the defendants purchase, neither Francis Hill nor any Jejer family member resided at 193.
191 Aspetuck Ridge Road, property not subject of this litigation, was owned by Thomas Jejer.
Frank and Daisy Jejer are the parents of Francis Hill, Philip Jejer and Thomas Jejer. Frank and Daisy Jejer are deceased. Thomas Jejer is deceased. Francis Hill is in her 80s. Francis Hill's son, Robert Hill, was the only Jejer family member who testified at trial, although the court received, in lieu of live testimony, Rosemary Jejer's deposition transcript in its entirety.
Sometime prior to 1950, Frank and Daisy Jejer owned 191, 193 and 201 Aspetuck Ridge Road. All three properties are adjoining. 193 is located south of 201 and 191 is south of 193. All three properties are on the westerly side of Aspetuck Ridge Road.
The actual record boundary lines of 193 and 201 are not in dispute. The plaintiffs are record owners of .989 acres, roughly 43,061 square feet. The 201 lot is oblong, running north and south approximately 135' at each end and east and west approximately 305' at each end. Further, there is no dispute that the defendants are the record title owners of the disputed area. The parties also agree that the "drill hole," as identified on plaintiffs' exhibit P-12, at the south east corner of 201, north east corner of 193, is the proper demarcation for the boundary mark dividing the properties on the easterly border line, as to both the actual record title and the disputed area boundary.
Simultaneous with their acquisition of 201, Rosemary and Philip Jejer began to use and maintain the disputed area. There was no evidence offered at trial that indicated that Rosemary and Philip's initial use of any part of the disputed area was with either permission or consent, expressed or inferred, from the owners of 193.
From 1950-1960 Rosemary and Philip Jejer leased the westerly portion of the disputed area to Fred Stebbins. Mr. Stebbins used the disputed area to pasture his cows. Mr. Stebbins pastured 5-6 cows in the disputed area for a decade and paid the Jejer's a fee for the use of the disputed area.
Additionally, through the years, while raising their three children, the Jejers themselves pastured horses and small farm animals in this westerly portion of the disputed area.
In 1970, Rosemary and Philip Jejer installed a combination dirt and gravel driveway within the disputed area. The driveway begins in the north easterly corner of 201 and traverses 201 in a south westerly path through the disputed area before turning north westerly through the disputed area back into 201, approaching the rear of the dwelling on 201. This driveway has, at all times relevant herein, provided access to 201 only and was exclusively used by only the occupants of 201. There was never any common use or sharing of this driveway with 193 or any of 193's occupants. 193 at all times relevant herein had its own driveway. There was no evidence offered that Rosemary and Philip Jejer's initial use of this portion of the disputed area was permissive, or with the consent of the owners or occupiers of 193. Rosemary and Philip never sought permission to install the driveway and none was ever given. Rosemary Jejer testified that they never sought permission to install the driveway because they had always assumed that the disputed area was part of 201. The driveway in the disputed area has always been maintained, including plowing and mowing, by the occupants of 201. Further, the plaintiffs have hired someone to mow the grassy area bordering the driveway within the disputed area. Grass clippings and leaves are deposited in the south easterly corner of the disputed area.
To this date, as depicted by photographs entered as exhibits at trial, the driveway still exists and is clearly defined and visible from Aspetuck Road. Looking at 193 and 201 from Aspectuck Road, the driveway in the disputed area would clearly appear to be associated with 201, only, in that to the southerly side of the driveway is brush and green overgrowth which appears to function as a natural boundary between 193 and 201. The plaintiffs have continued to use and maintain the driveway since their purchase of 201.
In 1972, Rosemary and Philip Jejer constructed a 2-story barn partially within the disputed area as indicated on plaintiffs' exhibit P-12 and marked "shed." The barn still stands on the property today. The barn housed various farm animals, including goats and horses, until approximately 1987. At all times relevant herein, this two-story barn has or should have been clearly visible to the occupants and/or owners of 193 or anyone else who came upon the property for that matter. No one else used the barn except the owners of 201.
Since moving into 201, the plaintiffs have used the barn to store garden tools, spare tires and other small equipment. Further, the plaintiffs began to clear brush around the area of the barn. The record title boundary line, going east and west between 193 and 201 cuts right through the middle of the barn, thus one half of the barn is within the disputed area and the other half is within the record title boundary of 201.
A portion of the southerly boundary of the disputed area is marked by old fence posts and barbed wire as indicated on P-12. The most southerly boundary line of the claimed disputed area tracks along the identified fence posts. Further, Mrs. Rosemary Jejer testified that a "wall" divided 193 and 201, as she indicated on plaintiffs' exhibit P-8, and is shown on plaintiffs' exhibit P-2, P-3, P-7 and P-12. It was this "wall" and the fence post that Mrs. Rosemary Jejer believed was the boundary line between 193 and 201 at its north-south boundary.
Other than the evidence that prior to her departure in 1984, Mrs. Daisy Jejer would on occasion walk through the disputed area in order to visit the occupants of 201, there was no evidence that anyone other than the occupants and owners of 201 used and maintained the disputed area. Robert Hill testified that as a child he would visit his grandmother, Daisy Jejer, at 193 about once per week. He played with his three cousins, Frank and Rosemary Jejer's sons. He testified that they played all over the three Jejer properties. As a child and an adult, Mr. Hill had no knowledge as to the actual boundary lines. Mr. Hill offered no evidence of any use or maintenance of the disputed area by the owners or occupiers of 193.
Since their purchase, the defendants testified that they tapped a maple free in the area which they believe is the disputed area. The defendants did not offer any other testimony relative to their use or maintenance of the disputed area. Further, there was no evidence admitted that the use of the disputed area by the occupants of 201 was by consent or with permission of the owners or occupiers of 193, either at the time of Rosemary's Jejer's initial occupancy of 201 or at anytime thereafter.
Curiously, in 1984, presumably in anticipation of the transfer of 193 from Daisy Jejer to her daughter, Frances Hill, a survey of 193 was prepared for Francis Hill. (P-4). This survey indicates, amongst other things, that the garage on 193 was 38.1' south of 201's southerly record boundary. In 2001, after the plaintiffs purchased and moved into 201, but prior to the defendant's purchase of 193, Frances Hill's son, Robert, approached Mr. Mulle with a copy of this 1984 survey. The survey caused Mr. Mulle immediate alarm in that he knew the driveway used to access 201 in reality is within feet of the 193 garage and thus the 201 driveway appeared to Mr. Mulle to be located within the boundaries of 193. Further, the southerly boundary line as depicted on the 1984 survey cuts right through the 201 driveway and right through the middle of the 201 barn.
These discrepancies in the 1984 survey which were immediately noticed by the plaintiffs should have been readily apparent to anyone residing at either 193 or 201. Despite its existence though, the holders of this survey never raised these obvious discrepancies to the owners of 201 or the future owners of 193 or 201. This 1984 survey was never shown to Rosemary or Jejer, until after the 2001 disclosure to Mr. Mulle. After the disclosure of this 1984 survey, Mr. Mulle contacted his lawyer. Although this boundary line dispute was at issue before the defendant's purchase of 193, the same was never disclosed to the defendants. The defendant did testify though that he saw the 1984 survey before he purchased 193.
When the plaintiffs purchased 201, it was their understanding that they were purchasing a parcel with boundaries consistent with that which is depicted on plaintiffs' exhibit P-12 and consistent with Rosemary Jejer's understanding and explanation of the boundary lines.
III
"[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner . . . A finding of adverse possession is to be made out by clear and positive proof . . . The burden of proof is on the party claiming adverse possession . . . Despite that exacting standard, our scope of review is limited. Adverse possession is a question of fact and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion." (Citation omitted; internal quotation marks omitted.) Woodhouse v. McKee, 90 Conn.App. 662, 669, 879 A.2d 486 (2005).
As to familial abutting landowners, our Appellate Court in Woodhouse set forth an additional burden on a claimant to establish adverse possession. The court stated, "In determining what amounts to hostility, the relation that the adverse possessor occupies with reference to the owner is important. If the parties are strangers and the possession is open and notorious, it may be deemed to be hostile. However, if the parties are related, there may be a presumption that the use is permissive . . . it is a general principal that members of a family may not acquire adverse possession against each other in the absence of a showing of a clear, positive and continued disclaimer and disavowal of title and an assertion of an adverse right brought home to the true owner a sufficient length of time to bar the owner under the statute of limitations from asserting ownership rights. The existence of a family relationship between the parties will prevent or rebut a presumption of adverse holding. Additionally, as a general rule, an adverse possession cannot be predicated on the possession of the parent as against a child . . . In order that a possession by a parent against a child . . . may become adverse, the owner must have had some clear, definite and unequivocal notice of the adverse claimant's intention to assert an exclusive ownership in the claimant." (Italics added.) Id. at 673.
"The standard of proof for establishing title by adverse possession is clear and positive proof. This burden of proof places a higher burden upon the claimant than the preponderance of the evidence standard." (Citations omitted; internal quotation marks omitted.) Helming v. Norris, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 02715778 (August 22, 2005, Arnold, J.). "[The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." Top of the Town, LLC v. Somers Sportsman's Ass'n., Inc., 69 Conn. 839, 844 (2002).
`To establish an easement by prescription in accordance with General Statutes § 47-37, [the party claiming to have acquired it] must prove the necessary elements by a preponderance of the evidence. In applying [§ 47-37, our Supreme 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. Because the plaintiffs contest only the court's determination that the defendant's use was open and visible for more than fifteen years, we limit our review to those elements.
"The purpose of the open and visible requirement is to give the owner of the servient land knowledge and full opportunity to assert his own rights . . . 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 . . . Concealed . . . usage cannot serve as the basis of a prescriptive claim because it does not put the landowner on notice . . . A typical example of such a concealed use involves an asserted easement in an underground sewer or pipeline." (Citations omitted; internal quotation marks omitted.) Stefanoni v. Duncan, 92 Conn.App. 172, 185, 883 A.2d 1271, appeal denied, 276 Conn. 935 (2005).
"[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right . . . The standard of proof that is required is a fair preponderance of the evidence." (Internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn.App. 296, 309, 880 A.2d 889, affirmed by 89 Conn.App. 260, 873 A.2d 208, appeal denied by 275 Conn. 905, 882 A.2d 668 (2005).
Unlike an adverse possession claim, "In Connecticut, although the burden of proof is on the party claiming a prescriptive easement . . . there is no presumption of permissive use to be overcome." (Internal quotes omitted.) Reynolds v. Soffer, 190 Conn. 184, 188 (1983).
IV
There can be no factual dispute that the plaintiff's use of the disputed area and that of their predecessor in title was open, notorious and continuous for well in excess of 15 years. The evidence is clear and convincing that since 1950 the owners and occupants of 201 have very openly, visibly and continuously used and maintained the disputed area, to the exclusion of all others, evincing a claim of right and title. The plaintiffs have satisfied this burden by clear and convincing evidence as to both the first and second count of their substitute complaint dated February 17, 2005.
Accordingly, as to the second count of the plaintiff's substitute complaint sounding in prescriptive easement, the court enters judgment in favor of the plaintiffs.
The more complex issue for this court is whether the p1aintiffs have complied with the requirements enunciated by the Appellate Court in Woodhouse, referenced above, as to the first count of the plaintiff's substitute compliant sounding in adverse possession. The case at bar gives rise to a Woodhouse analysis since the original relationship between the abutting property owners at 193 and 201 was familial.
Citing Am.Jur.2nd, the court in Woodhouse adopted the following rule: "In determining what amounts to hostility, the relation that the adverse possessor occupies with reference to the owner is important. If the parties are strangers and the possession is open and notorious, it may be deemed to be hostile. However if the parties are related, there may be a presumption that the use is permissive." (Emphasis added.) 3 Am.Jur.2d 124, Adverse Possession § 44 (2002).
Essentially, in Woodhouse, much like the case at bar, both the plaintiffs' and defendants' adjoining properties had been originally owned by the same person or family. Such evidence may give rise to a presumption of permissive use of a disputed area when coupled with other indicia of consent. Evidence of permissive use of a disputed area will defeat the required element of hostility in an adverse possession case, unless the claimant can prove that the consent to use the area in dispute had been affirmatively repudiated.
In Woodhouse, the court found ". . . the evidence is clear that both parcels were once owned by the same person, Archibald Young, and that he divided the property and eventually transferred all of his interest to his children, with Dorothy Young Kirk acquiring title to what is now the plaintiff's property, and Mary Kettles and John Kettles acquiring title to what is now McKee's (defendant) property. The Woodhouse property remained in the possession of the descendants of Archibald Young, but the McKee property eventually became owned by nondescendents. The original familial ownership of these adjacent properties directly affects the analysis of McKee's claim that the use of the disputed area was permissive and not hostile or adverse. Additionally, much of the testimony offered by the plaintiffs supports McKee's contention that the use had been permissive." Id., at 670-71. The court further noted "John Woodhouse and Harriet Woodhouse both testified that their family used to own both pieces of property, that the driveway to their house used to come from the area of the property that is now owned by McKee and that both parcels used to share the same driveway. The terminus of that shared driveway was the disputed area. It was not until the 1940s that a new driveway was installed on the plaintiff property. That new driveway joined part of the old driveway and continued to terminate at the disputed area. John Woodhouse also testified that he knew that the disputed area belonged to the other parcel and that his mother had informed him of this fact when he was a boy; but that there was never a question concerning their use of the area. He testified that `nobody ever said [they] could use it or [they] couldn't use it. It was an area [they] just used.' Harriet Woodhouse similarly testified that no one had ever given them permission to use the disputed area, nor had anyone ever told them that they couldn't use the area. Further, they had never asked anyone for permission; they simply continued to use the area." Id. at 671. "On the basis of this testimony and the record deeds, it is clear that the property once was owned entirely by Archibald Young and was separated or subdivided, and the separate parcels were transferred to his children. By the plaintiff's testimony, both parcels shared the same driveway, which was entirely on the McKee side of the property, at least until the 1940s, and both the new and old Woodhouse driveways always terminated at the same point, i.e., at the disputed area." Id., 671-72.
The Woodhouse court stated, "To acquire title by adverse possession, the possession must be hostile from its inception. The claimant's possession [must] be without license or consent of the owner." Id. (Internal quotes and cites omitted). The court concluded, "Here, the court failed to consider the relevance of the initial grantor-grantee or parent-child familial use of the disputed area. Although it recognized that the property initially was owned by Archibald Young and then by his children, it did not consider the shared use of the driveway and the presumptive license given to the plaintiffs or their predecessors in title to use the disputed area, which the court acknowledged was always the terminus of the driveway, both the old shared driveway and the new driveway." Id., 676.
Aside from the familial relationship between the original owners of 193 and 201, the facts in the case at bar are significantly distinguishable from the relevant underlying facts in Woodhouse. Most importantly, in Woodhouse, there was evidence that the claimants had permission to use the area in dispute from inception. Further, there was evidence of a shared using of the disputed area between the abutting property owners. Neither of these pivotal facts are present in the case before the court. The plaintiffs in this case were never granted permission or consent, expressed, inferred or otherwise, to use the disputed area. Additionally, there was no evidence of any shared use of any portion of the disputed area. The fact that 193 and 201 were at one time owned and occupied by members of the same family, does not, alone, give rise to the presumption of permissive use. Given the relevant facts of this case, application of the Woodhouse presumption would be inappropriate. Accordingly, having met all the other necessary elements of their claim, the court finds in favor of the plaintiffs on the first count of their complaint sounding in adverse possession.
V
For the foregoing reasons, the court enters judgment in favor of the plaintiffs as to count one and count two of their substitute complaint dated February 17, 2005 and herein determines and decrees that the plaintiffs are owners of the disputed area, as the same is depicted and set forth on plaintiffs' exhibit P-12 and the plaintiffs now have legal right and title to the use and enjoyment of the disputed area as set forth in plaintiffs' exhibit P-12.
SO ORDERED.