Opinion
No. CV02 039 20 51S
September 24, 2003
MEMORANDUM OF DECISION
The plaintiffs in this case acquired title to their property at 147 Broadway in Trumbull, Connecticut on July 6, 1959 by a deed from Anna Provenzano, the mother of Paul Provenzano. (Plaintiff Exhibit 12.) That deed showed a frontage on Broadway of 125 feet. The property to the north, 167 Broadway, was then owned by Anthony Varisco, the brother of Anna Provenzano. The evidence indicates that several other Provenzanos, including Paul's mother and father, were deeded parcels of property which abut and bound the property of the plaintiffs and the defendant and they all reside in the same area which has been described as the Provenzano compound.
On July 6, 1959, there was a house on the plaintiff's property at its northeasterly corner very close to the road and the Varisco property. That house burned down in 1960 and was replaced by a new house built by Paul Provenzano that was more centered on their property.
Although plaintiff's Exhibit 12 evidences a frontage of 125 feet on Broadway, apparently Anna Provenzano actually owned only 112.50 feet on Broadway. Her husband asked his brother-in-law Anthony Varisco to convey an additional 12.5 feet of his property bordering on Broadway to the plaintiff Paul Provenzano, but he refused. Apparently a map was prepared bearing #985, dated September 10, 1960 (Plaintiff's Exhibit 7), showing that small triangle at the northeasterly corner of the plaintiffs' property where it borders Varisco's property which Varisco had refused to convey to him. Sometime in 1967 Hugo Provenzano, the brother of the plaintiff Paul Provenzano, acquired title to 167 Broadway from the Varisco estate. Sometime in 1972 Hugo Provenzano conveyed the small triangular parcel of land having a frontage on Broadway of 12.5 feet as shown on map 985 (Plaintiff's Exhibit 7) to the plaintiffs for no consideration.
Paul Provenzano testified that his father showed him what he believed to be the property line between Paul and Dorothy Provenzano's northerly boundary of their property at 147 Broadway and the southerly property CT Page 10880-da line of the Varisco-Hugo Provenzano property at 167 Broadway. Paul Provenzano put up a split rail fence along that described line in 1960 or 1961 and has used the property south of that line exclusively at least up to 2001. All additions, improvements, outside patios, walls, fences or shrubs built or installed by Paul Provenzano were within that described boundary line with the exception of a shed to the rear of his property that Paul built knowing that it was on Hugo Provenzano's property. The plaintiffs are making no claim to any land that they knew was not theirs.
The plaintiffs built a patio in 1977 on what they believed to be their property near the line they believed separated their property from Hugo Provenzano's. Paul Provenzano testified that the patio today is the same size as when originally built in 1977 although it has been resurfaced and a low concrete wall and bushes were installed to the north of it, subsequently, all on land he believed to be his.
Hugo Provenzano, Mary Provenzano and the defendant Mark Provenzano all testified that they thought the patio appears larger now. They offered no testimony of when or how it was enlarged. The court credits the testimony of Paul Provenzano that the dimensions of the patio remain today the same as they were in 1977.
Hugo Provenzano never lived at 167 Broadway. Until he conveyed title to the defendant he always rented the property and the building situated thereon. On February 14, 2000, he conveyed 167 Broadway to his son, the defendant Mark J. Provenzano for no consideration. During all of the time Hugo Provenzano owned the property at 167 Broadway he never complained to his brother Paul, that his patio was over the line on his property. In contrast as to the shed and fence to the rear of the property, both Paul and Hugo acknowledged that the shed and fence were on Hugo's property, but Hugo allowed his brother to use it. Hugo never testified that he knew where the property line was separating his property at 167 Broadway from his brother's at 147 Broadway, never said anything to Paul that the patio was in fact on Hugo's property and never made any claim to it. He essentially testified that he ignored the fact of the patio, where it was located, never asked his brother to remove it and essentially admitted that Paul made exclusive use of the area where the patio existed.
Now his son, Mark J. Provenzano, presents a different story. As has been stated, he acquired title to 167 Broadway from his father Hugo on February 14, 2000. He lives there now with his wife and three children. He apparently originally moved into the house at 167 Broadway in 1991 as a tenant of his father Hugo. Prior to that time he was a tenant of a property to the rear of and west of 167 Broadway. CT Page 10880-db
He recounts an incident that took place sometime in the spring of 1989, some weeks after his mother died in February of 1989. At that time Paul Provenzano's son was a tenant of Hugo Provenzano's property at 167 Broadway. Apparently Paul Provenzano asked his brother Hugo if he was interested in selling 167 Broadway. The answer was no. This, however, angered Mark Provenzano who felt the inquiry was too close to his mother's passing and it might jeopardize his interest in 167 Broadway which he considered would eventually be his.
Shortly thereafter Mark and a friend who had a transit went to the property to attempt to define the property line between 147 Broadway and 167 Broadway. There is no indication how they did it or if anyone was qualified to do it. Mark Provenzano did put up a rope about 1 foot off the ground along this line extending from Broadway in a westerly direction that crossed the plaintiffs' patio and demonstrating that about 13 feet of the patio was on 167 Broadway. He immediately told his father Hugo who ordered him to remove it which he did. The rope was up for 4 hours. There is no evidence that the plaintiff Paul Provenzano ever saw it and neither Hugo nor Mark ever mentioned these facts to the plaintiffs.
On another occasion with the use of his truck and plow the defendant tore down the fence and shed that his uncle Paul Provenzano had erected on property owned by Hugo Provenzano and which he had used with his brother's permission.
Sometime around 1996 Paul Provenzano was planning to put an addition on his house and as a result of that had his property surveyed and then learned that there was a mistake as to the property line separating the northerly line of his property and the southerly line of Hugo Provenzano's property. He realized that his patio did encroach about 12 or 13 feet on Hugo's property. He did not bring this to Hugo's attention immediately. He realized that the mistake was about 20 feet wide and 100 feet long. Apparently sometime in 1998 Paul Provenzano asked his brother Hugo for a conveyance of that land which request was refused.
Thereafter, in November of 2001, Mark Provenzano had his property at 167 Broadway surveyed and it established the true property line between 147 and 167 Broadway and the fact that the patio did in fact protrude onto his property. He thereafter in no particular order installed a chain link fence approximately 100 feet long from Broadway right up to the patio, he removed the shrubs, bushes and concrete wall Paul Provenzano had installed on the northerly side of the patio and dumped a load of mulch on the patio, thus depriving the plaintiffs of any use of the patio. CT Page 10880-dc
Lastly, in the spring of 2003 when he claims that Paul Provenzano's 40-year-old mentally challenged son spit on one of his children from the patio he had the chain link fence extended right across the patio. In a preliminary motion in this case, the parties reached a compromise and the fence across the patio was removed.
In the spring of 2002, plaintiffs brought an action claiming adverse possession to a portion of defendant's property consisting of an approximate 100 ft. by 20 ft. rectangular strip lying parallel to the plaintiffs' northerly boundary and the defendant's southerly boundary and added a count of trespass, claiming that since they had acquired title by adverse possession to said strip of property, defendant had entered on the property and had trespassed by activity such as erecting a chain fence and disturbing plantings.
Said Complaint was revised in a document dated 5/29/03 entitled Revised Complaint in which the plaintiffs specifically claimed title to the same 100 x 20 ft. rectangular strip of property and claimed they had acquired title by adverse possession by constructing and maintaining a patio, by planting hedges, trees and landscaping, maintenance of a garage, a shed, fences and landscaping, etc. (See Revised Complaint, paragraphs 3 and 4.) Plaintiffs repeated the same claim of trespass. Defendant, by pleading dated 7/11/03 answered the Revised Complaint and filed a Counterclaim in effect contesting the claim of the plaintiffs that they had acquired title to the aforesaid strip of property by adverse possession, seeking a Judgment determining the rights of the parties in and to said portion of land, asking the Court to enter Judgment that the defendant had title to the entire property to which he has record title and a Judgment determining the rights of parties in and to the aforesaid property. Said Counterclaim was answered by the plaintiffs in a pleading entitled Answer to Defendant's Counterclaim dated 7/17/03, which Answer basically denied the thrust of the Defendant's Counterclaim.
The right to acquire title to property adverse to the record owner is governed by Section 47-31 of the Connecticut General Statutes. Sub-section (b) of the statute provides that "the complaint in such action shall describe the property in question and shall state the Plaintiff's claim, interest or title and the manner in which the Plaintiff acquired the claim, interest or title and shall name the person or persons who may claim adverse estate or interest." Such right is limited by Section 52-575 of the Connecticut General Statutes, which is contained in Chapter 926 of the Connecticut General Statutes dealing with statutes of limitation. Said section provides, in part, as follows: "(a) No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues CT Page 10880-dd or within fifteen years next after such person or persons have been ousted from possession of such land or tenements." In addition, "the plaintiff is required to prevail on the strength of his title and not on the weakness of his adversary's claim." Koennicke v. Maiorano, 43 Conn. App. 1, 9 (1996); Lowenberg v. Wallace, 147 Conn. 689 (1960).
There are numerous Connecticut cases which establish the criteria for supporting a claim of title by adverse use and possession. "The general rule concerning title by adverse possession is clearly expressed in Stevens v. Smoker, 84 Conn. 569, 574 (1911), to wit: `The essential elements of an adverse possession sufficient to create a title to the land in the adverse possessor are that the owner shall be ousted of possession and kept out uninterruptedly for a period of fifteen years, by an open, visible and exclusive possession by the adverse possessor, without the license or consent of the owner.' `The open, notorious, uninterrupted, continuous, undisputed, peaceable and adverse possession of land for the requisite period under a claim of right will give title' . . . Robinson v. Myers, 156 Conn. 510, 517 (1968); Whitney v. Turmel, 180 Conn. 147, 148 (1980); Roche v. Fairfield, 186 Conn. 490, 498 (1982); Shroeder v. Taylor, 104 Conn. 605 (1926); Bridgeport Hydraulic Company v. Sciortiano, 138 Conn. 690, 695 (1952); Schlough v. Ruley, 1 Conn. App. 119, 120 (1983); Clark v. Drska, 1 Conn. App. 481, 485 (1974). See also Top of the Town, LLC v. Somers Sportsmen's Association, Inc., 69 Conn. App. 839, 842 (2002).
"Under a claim of right" means that the person claiming adverse possession thought that the land was actually his, even if such assumption was a mistaken one. Lowenberg v. Wallace, 151 Conn. 355 (1964). A claimant can invoke adverse possession even if he operated under a mistaken belief that he held title to the parcel. Paletsky v. Paletsky 3 Conn. App. 587 (1985).
"Open, visible and exclusive possession" can be established by "acts, which at the time, considering the state of the land, comport with ownership: viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others . . . The claimant's possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use." Roche v. Town of Fairfield, 186 Conn. 490 (1982).
"The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out of inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner." Huntington v. Whalley, 29 Conn. 391 (1860). The burden on the Plaintiff to establish her claim by "clear and positive CT Page 10880-de proof" has been repeatedly held by subsequent Connecticut cases. Bridgeport Hydraulic Company v. Sciortino, 138 Conn. 690, 694 (1952); Robinson v. Myers, 156 Conn. 510, 517 (1968); Whitney v. Turmel, 180 Conn. 147, 148 (1980); Roche v. Fairfield, 186 Conn. 490, 498 (1982); Clark v. Drska, 1 Conn. App. 481, 484 (1984); Wildwood Associates, Ltd. v. Esposita, 211 Conn. 36, 42 (1989); Top of the Town, LLC v. Sommers Sportsmen's Association, Inc., 69 Conn. App. 839 (2002).
"Clear and positive" proof has been equated with "clear and convincing" proof. Clark v. Drska, 1 Conn. App. 481, 487 (1984). An excellent analysis of the doctrine of "clear and positive" proof is contained in the Clark v. Drska case cited above. In establishing the parameters for "clear and positive" proof, the Court in the Clark case stated that "it could be argued that `clear and positive proof' may be an ever higher level of proof than `clear and convincing proof.'" Ballentine's Law Dictionary (3d Ed.) simply defines the later as a degree of proof higher than that of preponderance of the evidence but does not define "positive proof." "Positive" is defined as "expressed clearly or peremptorily with no doubt" in Webster's Third New International Dictionary, whereas "convincing" is defined as "assuring by proof which so strongly supports that it seems conclusive" in the same source.
"This Court, therefore, holds that "clear and convincing" proof should be equated to "clear and positive proof." The standard is a degree of belief that is between the belief required in the average civil case and the belief of guilt beyond the reasonable doubt required in a criminal action. Such a burden of persuasion requires a reasonable belief that "the facts asserted are highly probably true [or] that the probability that they are true . . . is substantially greater than the probability that they are false." Lopinto v. Haines, Supra, quoting Dacey v. Connecticut Bar Association, Supra, 537; Wildwood Association, Ltd. v. Esposita, 211 Conn. 36, 42 (1989).
In addition to the substantial burden of proof imposed upon the plaintiff, the record title owner is further protected by a presumption in his favor. Huntington v. Whalley, 29 Conn. 391 (1860); Clark v. Drska, 1 Conn. App. 481, 486 (1984).
Whether or not the plaintiff has satisfied the substantial burden of proof and overcome the presumption in favor of the defendants involves questions of facts to be determined by the trier. Whitney v. Turmel, 180 Conn. 147, 148 (1980); Roche v. Fairfield, 186 Conn. ___, 490, 498 (1982); Clark v. Draka, 1 Conn. App. 481, 484 (1984); Schlough v. Ruby, 1 Conn. App. 119, 120 (1983). CT Page 10880-df
Upon a review of all the evidence the court finds that the plaintiffs have met their burden of proof and have demonstrated their right to the disputed parcel by adverse possession. That parcel is shown on Plaintiff's Exhibit 2 as the long triangle fronting on Broadway at the northeasterly corner of the plaintiffs' property and which the party's attorneys have shown by marking the boundaries of it by heavy pen or pencil. The plaintiffs have been using the parcel since 1960 when the line was shown to Paul Provenzano by his father. Over the years Paul and Dorothy Provenzano have erected a fence along the boundary, planted trees within the parcel, maintained them, and built a concrete patio in 1977 and thereafter added shrubs and a concrete wall to the north of the patio, all within the disputed area. The court finds the use to have been adverse since 1960 and certainly since 1977 either of which dates would more than supply the 15 years of adverse user. The court finds that the defendant did not exercise his right and dominion to the parcel until at least 2001 after he had the property surveyed.
The defense raised several arguments which the court will briefly discuss. Initially the claim is made that Hugo Provenzano gave his brother Paul permission to use the disputed parcel. That is simply not the case. Hugo did give Paul permission to use another portion of his property on which a wall, walkway and sheds were erected by Paul and Paul has never disputed that fact. That area, however is not now a part of this case and no claim is being made to it. In fact when the defendant tore it all down, there was no response from the plaintiffs.
There is the further claim that somehow by the deed from Hugo to the plaintiffs of the 12.5 feet on Broadway in 1972 that that fact militates against the plaintiff's claim of adverse possession. It simply does not. The evidence is that Paul Provenzano's mother thought she had given him 125 feet frontage on Broadway when in fact she only owned 112.50 feet at the time of conveyance. Eventually Hugo Provenzano righted that error by his deed in 1972. That in no way detracts from the fact that Paul still believed that the property line was the same one as shown to him by his father in 1960. The deed of the additional 12.5 feet just confirmed that line.
The defendant then argues that when he and a friend with a transit attempted to locate the boundary line between 147 and 167 Broadway and temporarily strung a rope on the supposed line that crossed the patio, that somehow interrupted any adverse user. The facts bely that. As soon as the defendant told his father Hugo what he had done, his father ordered him to remove the rope which was done within 4 hours of its placement. Neither Hugo nor Mark Provenzano ever mentioned this incident to Paul Provenzano and there is no evidence that he was ever made aware CT Page 10880-dg of it. These facts are consistent with an open, continuous, exclusive and adverse possession of the disputed parcel by the plaintiffs.
The defendant further argues that as a result of Paul Provenzano's request of his brother Hugo in 1998, after he had acquired his own survey showing the patio on Hugo's property, for a deed to that area, that somehow defeats his claim of adverse possession. That is simply not the case. First when Paul Provenzano learned in 1996 pursuant to his survey that he was in fact using as his own a portion of Hugo Provenzano's property, the fifteen-year period of adverse possession had already occurred. The fact that he asked for a deed instead of suing his brother for adverse possession in no way lessens his claim of adverse possession. Even after Hugo refused to deed the property to Paul, Hugo took no action and allowed things to go on as they had for over 38 years. It was only after the defendant acquired title from his father that the hostilities began.
The defendant further argues that because he used his truck and plow to knock down the shed and fence that Paul Provenzano had erected on Hugo's rear property with Hugo's permission again demonstrates that he had exercised dominion over the disputed parcel. Again just the opposite is demonstrated by the evidence. The defendant did not plow down at that time the patio or the wall or shrubs to the north of it, all on property he now claims as his. All he did was show dominion over the real property which the plaintiffs are not seeking and he acknowledged their dominion and control of the disputed parcel.
From 1959 until at least 1996 when Paul Provenzano first had his property surveyed he exercised an open, notorious, exclusive, uninterrupted and adverse possession of the disputed parcel. There was no marked or staked boundary line during that time. The only one who testified as to the line was Paul Provenzano who was shown the line by his father as far back as 1960. No one ever disputed that line until 2002. The plaintiff used that property exclusively until 2002.
Based on the foregoing judgment shall enter for the plaintiffs on both counts of the Amended Revised Complaint to the extent that they acquired title to the disputed parcel, by adverse possession, as delineated on Plaintiff's Exhibit 2, plus costs. No damages are found and interest therefore is moot.
As to the counterclaim judgment shall enter for Paul and Dorothy Provenzano.
GORMLEY, J., J.T.R CT Page 10880-dh
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