Opinion
No. CV 08 4033459 S
January 13, 2011
MEMORANDUM OF DECISION
On September 19, 2008 the plaintiffs filed a three-count civil action against their next door neighbors, the defendants, alleging in the first count that the defendants have committed and continue to commit unlawful trespass on the plaintiff's property, and in the second count alleging that the defendants have created and continue to create a private nuisance on the plaintiff's property. The third count seeks a judgment quieting title to the plaintiff's property as described in the complaint. By way of relief the plaintiffs seek money damages on counts one and two, injunctive relief, and a judgment quieting title to their property.
The complaint alleges that the defendants have constructed a paved driveway, a gravel driveway, and have been parking a boat and/or trailer and motor vehicles on the plaintiff's property. It is also alleged that the defendants have been depositing lumber, tree stumps, old Christmas trees and other debris on the plaintiff's property, and that none of these actions have been done with the permission of the plaintiffs.
In their answer the defendants admit only that the plaintiffs and the defendants own their respective properties as described in the complaint. As to all other allegations, the defendants have either denied the allegations or leave the plaintiffs to their proof.
The defendants have also filed a special defense alleging that they have acquired a prescriptive easement to what is alleged to be the "disputed area" on the plaintiff's property, and a counterclaim alleging that they have acquired title to the "disputed area" by virtue of adverse possession. In their reply to the special defense and their answer to the counterclaim the plaintiffs admit only the ownership of the respective properties by the parties. By way of relief on the counterclaim the defendants seek possession of the "disputed area."
This court conducted a bench trial on the complaint and counterclaim on August 18 and 19, 2010. Appropriate briefs have been filed by each party.
The court finds the following facts and reaches the following conclusions. The plaintiffs acquired title to property known as 64 Five Field Road in Madison on November 12, 2003 and continue to reside at that address. The defendants acquired title to 72 Five Field Road in Madison on August 18, 1998 and continue to reside at that address. Both properties are part of a subdivision described as "Final Plan Five Fields" with the plaintiff's property designated as lot 41 and the defendant's property designated as lot 42. The defendant's property abuts the plaintiff's property on its north side. The common boundary between the two properties is a straight line running 271.54 feet from Five Field Road to the east boundary of both properties. East of both properties is other property in the subdivision described as "open space."
At various times from August 18, 1998, to September 29, 2008, the defendants have engaged in the following activities located on the plaintiff's property: constructed and maintained a retaining wall, maintained a paved driveway, cleared and cut trees, shrubs and brush, constructed and maintained a gravel driveway beyond the paved driveway, parked and stored a boat and trailer in various locations, parked and stored motor vehicles in various locations, stacked and stored firewood in various locations, deposited brush, lumber, old Christmas trees and other debris in various locations, mowed grass and constructed and maintained a "tether ball."
The defendants purchased their property from William West and Jane West on August 17, 1998. The Wests had owned the property since December 16, 1980. Mr. West mowed the grass in an area owned by the plaintiffs, his children and other neighborhood children played in an area in the rear of the defendant's and the plaintiff's property, he parked a motor vehicle on a paved driveway about ten feet on to the plaintiff's property, and he had a compost pile in front of the paved driveway. The defendants seek to tack their ten years of alleged use and occupancy of the plaintiffs' property to at least five years of alleged use and occupancy by Mr. West to satisfy the fifteen-year requirement. The area of the plaintiffs' property occupied by Mr. West was substantially less than the area occupied by the defendants.
In 2003 the defendants refinanced their property. They executed the usual affidavit and mortgage deed in connection with the refinancing. The affidavit provided that there was no dispute or disagreement about the location of any boundary line, and the mortgage deed used the same description of their property that was used in the warranty deed when the defendants acquired the property in 1998.
In 2008 the plaintiffs noticed the defendants clearing trees, shrubs and brush on what they believed was their property. They had a survey done by a licensed land surveyor who put up surveyor's stakes along the boundary line. Mr. Brucher removed the stakes so the plaintiffs had their surveyor install permanent monuments marking the boundary line. The boundary line established by the surveyor was consistent with the deeds to the two properties. In early 2008 the plaintiffs advised the defendants about the possible encroachments on their property. The defendants then removed the boat and trailer, the firewood and the tetherball from the plaintiffs' property but thereafter restored the tetherball on the plaintiffs' property. The plaintiffs will be required to expend $7,000.00 to remove the encroachments and to restore their property to its prior condition, and have been required to expend $3,792.50 for the services of the surveyor.
The first legal issue to be determined in this case is whether the plaintiffs have proven the claim of trespass alleged in their complaint. The complaint also alleges a claim of nuisance in the second count which has not been pursued by way of the plaintiffs' brief and is deemed to have been abandoned.
The defendants have conceded that the plaintiffs have proven that they do hold the title interest in the "disputed property" but they do not concede that the plaintiffs have proven that the defendants have trespassed on their property. The basis of the defendants' position that they have not committed a trespass is their claim that title has equitably passed to them by adverse possession, which is alleged by way of a counterclaim. The special defense alleging that the plaintiffs' claims are barred by the doctrine of prescriptive easement has not been pursued in the defendants' brief and is deemed to have been abandoned.
"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. Avery v. Spicer, 90 Conn. 576, 579 (1916); 75 Am.Jur.2d, Trespass §§ 3, 8, 14, 25, 35 [1991]. The invasion, intrusion or entry must be physical . . . [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." (Citation omitted; internal quotation marks omitted.) City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88 (2007).
The plaintiffs have proven all of the essential elements of a claim of trespass, including that they will be required to expend $7,000.00 to remediate their property so as to restore it to the condition it was in before the various encroachments occurred.
Having found that the plaintiffs have proven their claim of trespass the court will next consider whether the defendants have defeated that claim by proving that title to the areas of trespass has passed from the plaintiffs to the defendants by adverse possession.
"[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner." (Internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 622-23, 772 A.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001); see also General Statutes § 52-575(a).
"A `claim of right' does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner's right to possession. Horowitz v. F.E. Spencer Co., 132 Conn. 373, 378, 44 A.2d 702 (1945); Mentz v. Greenwich, 118 Conn. 137, 146, 171 A. 10 (1934).
"A finding of adverse possession is not to be made out by inference, but by clear and positive proof . . . `[C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.' (Citations omitted; internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). The burden of proof is on the party claiming adverse possession. Kramer v. Petisi, supra, 53 Conn.App. 67." Top of The Town, LLC v. Somers Sportsmen's Assn., Inc., 69 Conn.App. 839.
The defendants have failed to establish by clear and convincing proof that they have ousted the plaintiffs from possession of their property by an open, visible and exclusive possession, with the intent to use the property as their own and without the consent of the plaintiffs, without interruption for fifteen years. In early 2008 the plaintiffs notified the defendants that the defendants had been encroaching on the plaintiffs' property. The defendants did not claim that they had title by adverse possession but instead removed some of the encroachments. When the defendants refinanced their property in 2003 there was no indication that they claimed any of the plaintiffs' property by way of adverse possession.
The defendants claim that their use of the property continued for the ten-year period of their ownership and also for at least five years of the prior period of ownership by Mr. West.
The adverse possession claim is not made under a claim of title but rather it is made under a claim that arises from an alleged open and hostile possession of the property in issue.
Our Appellate Court has articulated the burden of proof that one has when a claim of adverse possession is made that is not made under a claim of title. "The Vermont Supreme Court has stated: "Adverse possession may be asserted either under claim of title (where claimant took possession under a deed which is for some reason defective), or under a claim of right which arises from the open, notorious and hostile possession of the land at issue. Where there is color of title, it is relatively simple to ascertain the extent of the possession claimed, since actual and exclusive occupation of any part of the deeded premises carrie[s] with it constructive possession of the whole . . . In the absence of color of title, however, and where a lot has no definite boundary marks, adverse possession can only extend as far as claimant has actually occupied and possessed the land in dispute." (Citation omitted; emphasis added; internal quotation marks omitted.) Community Feed Store v. Northeastern Culvert Corp., 151 Vt. 152, 156, 559 A.2d 1068 (1989); see N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 441, 736 A.2d 780 (1999), cert. denied, 528 U.S. 1079, 120 S.Ct. 798, 145 L.Ed.2d 672 (2000); see also Fee v. Leatherwood, 232 Ark. 817, 821, 340 S.W.2d 397 (1960) (appellees' adverse possession limited to land actually occupied); Friendship Baptist Church, Inc. v. West, 265 Ga. 745, 745, 462 S.E.2d 618 (1995) (where no color of title, prescription will not extend beyond actual "possessio pedis"); Yakima Valley Canal Co. v. Walker, 76 Wash.2d 90, 93, 455, P.2d 372 (1969); Droege v. Daymaker Cranberries, Inc., 88 Wis.2d 140, 146, 276 N.W.2d 356 (Wis.App. 1979) (burden of providing extent of occupancy rests with adverse possessor); 3 Am.Jur.2d 108, Adverse Possession § 27 (2002) . . .
"It is our view that Connecticut jurisprudence is in accord with the general principle of law expressed by the Vermont Supreme Court and adopted by many of our sibling states. Accordingly, the plaintiff in the present case, who did not proceed under color of title, is entitled to only the area that he actually occupied during the course of his adverse possession." Lisiewski v. Seidel, 95 Conn.App. 696, 708-9.
The defendants have failed to prove by clear and convincing evidence what areas of the plaintiffs' property was occupied by Mr. West and what areas they occupied for a continuous fifteen-year period. The pleadings, evidence, and brief filed by the defendants refer to the area of the plaintiffs' property which the defendants claim title to by adverse possession as the "Disputed Property." The only reference in the defendants' brief to specific evidence describing the "Disputed Property" is on page 9. The portion of the transcript referred to in the brief is insufficient to prove what land they have "actually occupied and possessed." The reference to a map "produced for identification only" is apparently a reference to exhibit 4 for identification which was successfully objected to by the defendants. In addition a sketch which was part of exhibit 5 was not offered for the truth of what it showed. The evidence offered was inadequate to prove what specific areas of the plaintiffs' property either the defendants or Mr. West actually occupied and possessed.
For the foregoing reasons the court finds that the plaintiffs have proven their claim of trespass and they are awarded damages of $7,000.00 as against the defendants on the first count of their complaint plus taxable costs.
The second count has not been pursued.
On the third count the court, pursuant to Connecticut General Statute Section 47-31, enters judgment quieting title in the plaintiffs to the property described as lot 41 on maps 1538 and 1539 on file in the Madison Town Clerk's Office, and as exhibits 2 and 3 in this case, and finds that the defendants have no interest in said property.
The court finds that the defendants have failed to prove their counterclaim alleging adverse possession and judgment may enter in favor of the plaintiffs on said counterclaim.