Opinion
No. CV 05-4006616
December 21, 2006
MEMORANDUM OF DECISION
This case is essentially a dispute over land between adjoining property owners located on the east side of North Road in the town of East Granby, Connecticut. The plaintiff, Robert A. Sokoloski (hereinafter also called "Sokoloski") owns and resides at 54 North Road, and the defendants, Cameron A. McCorison now owns and Andrea McCorison now or formerly own(ed) the premises northerly of 54 North Road and known as 56 North Road. The disputed area is 4,685 sq. ft. plus or minus shown in blue or purple hatch marks on a certain survey of Henry C. Cotton Associates dated September 17, 2004, revised October 19, 2004, (hereinafter also known as the "Cotton Survey" and also known as "Plaintiff's Exhibit 4." The plaintiff brought this action by complaint dated December 9, 2004 in six counts.
The first count is against the defendants Cameron A. McCorison and Andrea McCorison (hereinafter also called the "McCorisons") claiming adverse possession of the disputed area.
The second count is against the McCorisons seeking to quiet title to the disputed area in accordance with Conn. Gen. Stat. § 47-31.
The third count, although labeled against the Krasnogers is really against the McCorisons and claims a prescriptive easement over the disputed area.
The fourth count is against the defendant, Mary Ann Krasnoger (hereinafter also called "Krasnoger") claiming oral and written misrepresentations in regard to the location of the boundaries of the land she and her late husband sold to the plaintiff in 1993.
The fifth count is against Krasnoger claiming breach of contract essentially claiming breach of the warranty deed from Krasnoger and. her late husband to the plaintiff. The sixth count is a claim against the Connecticut Attorney Title Insurance Company, Inc. which subsequently was withdrawn. A trial was held before this Court on July 5, 6, 11 and 13, 2006. The parties filed briefs, the last one of which was filed on November 2, 2006.
FACTS:
In 1953, Thomas Krasnoger, Sr. and Agnes Krasnoger owned a thirty-acre parcel of land on the easterly side of North Road in the town of East Granby. This land maintained as its northern boundary the Granby/East Granby town line. On January 9, 1954, Thomas Krasnoger, Sr. and Agnes Krasnoger subdivided their parcel by retaining premises known as 56 North Road and quit claiming to their son Thomas Krasnoger, Jr. the parcel to the south known as 54 North Road. Thomas Krasnoger, Jr. then quit claimed through a straw man to himself and his wife, the defendant Mary Ann Krasnoger, in 1956. At the same time, Thomas Krasnoger, Sr. and his wife Agnes Krasnoger quit claimed the property abutting 54 North Road to the south known as 52 North Road to his other son, Frank Krasnoger. Plaintiff purchased the land and buildings at 54 North Road on September 28, 1993 from the defendant Mary Ann Krosnoger and her late husband Thomas Krasnoger, Jr. Further facts will be set forth hereafter as necessary.
STANDARD OF REVIEW:
In order to sustain a claim of adverse possession, the plaintiff must prove that the defendant, owner, and his predecessors in title were 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 and that the plaintiff must prove that the open, notorious, uninterrupted, continuous, peaceable and adverse possession of the disputed area for the requisite period of time was under a claim of right. Further, the area of adverse possession must be defined with reasonable certainty. Additionally, the Court finds that the burden upon the plaintiff is to prove his case by clear and convincing evidence and that the plaintiff may not rely upon inference in his efforts to prove the elements of his claim of adverse possession.
See Robinson v. Myers, 156 Conn. 510, 517 (1968); also, see Crandall v. Gould, 244 Conn. 583, 590, 591 (1998) " . . . it is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified." (Internal quotations omitted). "Instead, the`essential quality' is that the use not be made`in subordination to those against whom it is claimed to be adverse.' "
Conn. Gen. Stat. § 52-575 reads as follows:
Entry upon land to be made within fifteen years. (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 or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid and his heirs, shall be utterly disabled to make such entry afterwards . . .
An action to quiet title has been brought under Conn. Gen. Stat. § 47-31 which reads as follows:
Action to settle title or claim interest in real or personal property. (a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.
For the full text of Conn. Gen. Stat. §§ 47-31 and 52-575, the parties are referred to the General Statutes which are incorporated herein by reference.
Finally, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency and inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case as well as the Exhibits in this case.
FINDINGS AND ISSUES: Credibility The Court finds Mr. Cotton, the plaintiff's expert, more credible than Wilson M. Alford, Jr. (hereinafter also "Alford"), the defendants' expert. The Court also finds Mr. Cotton and the plaintiff more credible than the defendant Krasnoger. The Court makes these findings for, among other things the following reasons: 1. As for Alford, his survey, Defendants' Exhibit M-N is primarily concerning 56 North Road. Further, he did not do a comprehensive examination in the field as did Cotton. Also, on his map he did not even spell the plaintiff's name correctly.Moreover, he seemed to rely on only one map, the "Serafin Property." Finally, at times he contradicted himself and was not articulate during his testimony.
2. As for the defendant, Krasnoger, her testimony at trial was inconsistent in many ways with her testimony during her deposition which took place on May 12, 2005 and is labeled as Plaintiff's Exhibit 19, which this Court has read in its entirety.
3. Her testimony at trial indicated that the entire family would use and maintain the disputed area. However, during her deposition, she never mentioned such type of use despite cross-examination by both defense attorneys.
4. In her deposition, she indicated, page 26, that she agreed with the description on the survey map that was given to her and her husband by Society for Savings showing the property at 54 North Road as 130 ft. by 200 ft. in a perfect rectangle. Her counsel in his brief indicates that she made a mistake relying on that survey and somehow was induced into believing that was the size of her property. However, there were other indications from her testimony that she believed her property to be a rectangle.
5. On page 27 of the deposition transcript, she referred to a map, Exhibit 6 in the deposition. However, she was again asked if the boundary line is as it appears in Exhibit 6; that is, a straight, perpendicular line from North Road. She answered "Yes."
6. On page 29 of the deposition transcript, in answer to a question of utilizing the blueberry bushes as they appear on Plaintiff's deposition Exhibit 8 as a marker in relation to their boundary line on the northerly side of their property, she answered that she helped to maintain the property by mowing the disputed area and would go east, close to the bushes indicating that the boundary line was just southerly of the blueberry bushes.
7. On page 40 of the deposition transcript, Krasnoger had drawn a line in red from North Road at a 90 ° angle straight back, indicating that her northerly property line was just south of what is marked "well" on Plaintiff's Exhibit 1 in the deposition.
8. On page 42 of the deposition transcript, it shows that Krasnoger took a yellow magic marker and drew a line on Plaintiff's deposition Exhibit 1 from North Road directly back on a 90 ° angle as the northerly boundary of where she owned and cared for her property. That is just south of her marking of the "well," and, of course, would indicate a rectangle as the layout of her property.
9. On page 48 of the deposition transcript, Attorney Brignole pointed out a utility pole on deposition Exhibit 8, as a SNET 1115, and Krasnoger stated that she would maintain the property directly east of that utility pole in a straight line or a perpendicular line from North Road all the way to the back boundary of her property. This is on the southerly border of 54 North Road and again indicates that she believed, as of the date of the deposition in 2005, that her southerly border was on a 90 ° angle or perpendicular to North Road. This was not based upon the Society for Savings survey, but rather, her own drawing on Plaintiff's Exhibit 8 of the deposition.
10. In her deposition testimony in 2005, she was somewhat vague on whether or not she had met with Mr. Cotton going over the boundary line. In her trial testimony, she was even more reluctant to confirm Mr. Cotton's testimony that she had met with him as to the northerly boundary line of her property, indicating that her husband had met with him, but she remembered meeting with him only as to the front portion of the property and not specifically as to the boundary line. However, Mr. Cotton testified to the contrary and reduced the content of that meeting to writing. Plaintiff's trial Exhibit 4 is Mr. Cotton's survey, A-2, of property owned by the plaintiff, with the name correctly spelled, dated September 17, 2004 and revised October 19, 2004 to show the disputed area. This notation was made on or about the time of the revision and reads as follows:
2) In October 2004, former owner Mary Ann Krasnoger, present owner Robert A. Sokoloski and Stephen S. Cotton, Sr., L.S. met at site to review disputed southerly property line of of (sic) land now owned by Cameron A. McCorison abutting land owned by Robert A. Sokoloski. See line "A" to "B" as depicted on this plan. According to Mary Ann Krasnoger, said line is the recognized property line that she and her deceased husband, Thomas Krasnoger, Jr., maintained from January 1954 to September 1993, and is also the line as shown to Robert A. Sokoloski at time of conveyance in September of 1993.
Also noted on said survey is a pink line drawn from position "A" easterly in a perpendicular line from North Road straight back to point "B," and is identified on the survey as the "Northern Boundary Line Located in Field by Mary Krasnoger." It shows the tree on the boundary line to which testimony was made and it is southerly of the blueberry bushes as indicated from testimony by Mary Ann Krasnoger as well as others. The black line on said map which goes on a 90 ° angle straight back easterly from North Road to part way back of the property of the plaintiff represents the southerly boundary of 54 North Road which is based on Mr. Cotton's testimony that it was Frank Krasnoger who mowed the lawn between the black line and his northerly boundary of 52 North Road as shown on Plaintiff's Exhibit 4. Mary Ann Krasnoger, in her deposition, also, as indicated above, testified that the southerly boundary of her property, the line where she maintained it, was on a perpendicular basis northerly of the northerly boundary of Frank Krasnoger as shown on said map.
COUNT TWO: Quiet Title Under Conn. Gen. Stat. § 47-31:
The Court finds that the plaintiff has met his burden of proof by clear and convincing evidence that he is the owner in fee simple of the area on Plaintiff's Exhibit 4 known as the Disputed Area. The Court makes this finding for the following reasons:
1. First, as to the southerly boundary of 54 North Road, Mr. Cotton testified that the southerly boundary was much closer to being perpendicular based upon his knowledge of the usage in the field (i.e. mowing of grass). Trial Transcript 7/5/06, p. 106. Cotton testified that ". . . the line in possession was in no way as it's (sic) shown in our survey. The line of possession was much closer to Mr. Sokoloski's house than as we depicted on that plan . . . The angle would be closer to 90 ° than the angle that we're showing on that survey." In answer to a question as to whether the line would be parallel to the northerly boundary of the disputed area, Cotton said "Yes," and further stated that it would appear more along the lines of Plaintiff's Exhibit 3 than the boundary lines on Exhibit 4. Plaintiff's Exhibit 3 is the survey for Society for Savings, which admittedly is only a Class D survey, but is rectangular in shape. (TT 7/5/06 107-09.) It should also be noted that all of the deeds from Thomas Krasnoger, Sr. and Agnes Krasnoger to eventually the plaintiff each had a description of the property being a rectangle, namely 130 ft. along North Road with the same on the easterly boundary and 200 ft. on the northerly and southerly boundaries.
Trial Transcript will hereafter be shown as "TT."
2. The plaintiff testified, and the Court has found him to be a credible witness, that he had delivered oil to Thomas Krasnoger, Jr. and Mary Ann Krasnoger for fifteen years prior to purchasing the property in 1993. He indicated that he saw what he believed to be the boundaries of the property from its use, the northerly boundary being the northerly boundary of the disputed area. Subsequently, before the closing, both Krasnogers identified the boundary lines before he entered into the purchase and sale agreement with the northerly boundary being the northerly boundary of what is now shown as the disputed area although according to Mary Ann Krasnoger on a 90 ° angle from North Road. (TT 7/5/06, pp. 35-36, pp. 52-56.) (Also see TT 7/5/06, pp. 52-54.)
3. The plaintiff also testified that Agnes Krasnoger who still owned 56 North Road, shortly after his purchase of 54 North Road, designated the northerly boundary line of 54 North Road as being the same as Thomas Krasnoger, Jr. and Mary Ann Krasnoger had indicated, the northerly boundary line now shown of due disputed area. Agnes Krasnoger identified to the plaintiff the northerly boundary line within six months of his purchase of the property. According to the plaintiff, Agnes Krasnoger pointed out that the tree (which is shown on Plaintiff's Exhibit 4) was on her son's land, namely Thomas Krasnoger, Jr. This is consistent with the northerly boundary of the disputed area as shown on Plaintiff's Exhibit 4. (TT 7/6/06, pp. 55-57.)
4. The plaintiff also testified that Mary Ann Krasnoger had pointed out to him that the starting point of her northerly boundary on North Road was opposite the middle of the driveway across the street and then stated that it went from the driveway through or on the tree and then up to the blueberry bushes and then back into the woods to the pine trees. He was told by Mary Ann Krasnoger that the pine trees were along the easterly boundary of his property. (TT 7/5/06, pp. 142-46.)
5. It should also be noted that the plaintiff testified that Mary Ann Krasnoger had told him that the southerly boundary of 54 North Road was approximately 33 ft. from the house. The plaintiff identified a point on Exhibit 3 as being the 32.8 ft. as described by Mary Ann Krasnoger. (TT 7/5/06, pp. 144-45.) He also indicated (TT 7/5/06, p. 146) that he and Frank Krasnoger have been using the perpendicular property line from 1993 through to the present time as the southerly property line of the plaintiff and the northerly property line of Frank Krasnoger.
6. Mr. Cotton testified that Mary Ann Krasnoger had shown him that the northerly boundary of 54 North Road was very close to the blueberry bushes but not into them. (TT 7/5/06, pp. 94-95.)
7. Mr. Cotton also testified that Mary Ann Krasnoger had told him that she and her husband had been maintaining the premises up to that northerly boundary as she described it and that she was very adamant that at no time did she ever think the line could have been anything like it is depicted on his original survey. (TT 7/5/06, p. 96.)
8. What is particularly damaging to the defendants' case is the application by Thomas Krasnoger, Jr. dated July 2, 1958, Plaintiff's Exhibit 5, for a building permit to build a garage. The application states that the side yard from the northerly most corner of the garage to the northerly boundary of the property owned by Thomas Krasnoger, Jr. and his wife, Mary Ann Krasnoger, is 50 ft. Using the scale on Plaintiff's Exhibit 4, the 50 ft. would take the side yard to the northerly boundary of the disputed area. If one were to look at the southerly boundary of a disputed area at that point, the distance of the side yard from the corner of the garage as mentioned would only be 5 ft. which would be less than the side yard requirement and would not have been approved by the Building Department of the Town of East Granby. As noted on Plaintiff's Exhibit 4, there is now a wood deck easterly of the garage with the northerly most corner in approximately the same position as the northerly most corner of the garage which means that the wood deck for which presumably an application had been made, was only 5 ft. to the southerly boundary of the disputed area and approximately 50 ft. to the northerly boundary, and if a southerly boundary were used, it would be in violation of the side yard requirements. What is most important, is that Thomas Krasnoger, Jr. believed by his application in Plaintiff's Exhibit 5 that the side yard was 50 ft. and confirms his belief that he believed the northerly boundary of his property was the northerly boundary of the disputed area. Testimony as to the violation of the side yard requirement was by Mr. Cotton. (TT 7/5/06, p. 126.) He had previously testified that the Zoning Regulations in the Town of East Granby took effect in 1957. The application mentioned was dated June 2, 1958.
9. The plaintiff testified that Thomas Krasnoger, Jr. told the plaintiff that Agnes Krasnoger, his mother, had instructed him to plant the weeping cherry tree on the northern boundary line which Thomas Krasnoger, Jr. stated he did and told the plaintiff that the weeping cherry tree is on the northern boundary. The plaintiff also testified that Thomas Krasnoger, Jr. showed him the north boundary along North Road starting opposite the middle of the driveway across the street, then proceeding in an easterly direction through the weeping cherry tree to the blueberry bushes in the back and then into the woods. This is the same information which was told to the plaintiff by Mary Ann Krasnoger. (TT 7/5/06, pp. 141-42.)
10. It wasn't until the McCorisons received the survey done by Alford in 2004 that they confronted the plaintiff and claimed that the boundary line was at an angle and not perpendicular and was as shown by Alford.
It should also be noted that the evidence mentioned above was repeated several times during the trial.
FROM THE TOTALITY OF THE EVIDENCE, INCLUDING THE AFOREMENTIONED EVIDENCE, THIS COURT FINDS BY CLEAR AND CONVINCING EVIDENCE THAT THE PLAINTIFF IS THE OWNER IN FEE SIMPLE OF THE AREA MARKED AS "DISPUTED AREA" IN PLAINTIFF'S EXHIBIT 4, AND THAT THE SOUTHERLY BOUNDARY OF 54 NORTH ROAD IS THE BLACK LINE FROM NORTH ROAD EXTENDED DIRECTLY EASTERLY TO THE EASTERLY BOUNDARY OF TUE SAID PREMISES AS SHOWN ON PLAINTIFF'S EXHIBIT 4.
The Plaintiff is ordered to have Mr. Cotton prepare an A-2 Survey of 54 North Road in accordance with this decision showing it as a rectangle with appropriate language for this Court's signature with said A-2 Survey to be placed upon the land records of the town of East Granby following the Court's signature. The cost of same is to be paid by the defendant Cameron A. McCorison.
Plaintiff claims that the defendants in their answer were required to state whether or not they claimed any interest in the property, and if so, the nature and extent of that interest which they claim. Further, the plaintiff claims that the defendants McCorisons have as to this count merely denied the factual allegations contained in the complaint and have not in any way complied with subparagraph (d) of Conn. Gen. Stat. § 47-31. This is true as to the Answer dated March 16, 2005, but the defendants McCorisons filed a substitute answer and special defense of defendant Cameron McCorison dated June 28, 2006 which is noted as stricken. The special defense is in accordance with Conn. Gen. Stat. § 47-31d. Although the word stricken is written on the first page of the answer and special defense, there is nothing in the file or in the computer printout as to the pleadings to indicate that any action was taken to strike that answer and special defense. Based upon the special defense being operative, the said defendant has complied with Conn. Gen. Stat. § 47-31(d), and, therefore, plaintiff's claim that said defendant is estopped from raising that issue described in the special defense is not valid.
COUNT I — Adverse Possession:
There are three elements to be proven by the plaintiffs to sustain his burden of proving adverse possession of the disputed area. First, the plaintiff is required to establish that its use of the property in dispute was open, visible, exclusive, continuous and uninterrupted for fifteen years and made under a claim of right. See Reynolds v. Soffer, 190 Conn. 184, 187 (1983).
The Court will address these three elements individually.
1. Regarding the test of open, visible and exclusive possession of the property and made under a claim of right without license or consent of the adjoining property owner, the evidence is overwhelming from Cotton's testimony, the plaintiff's testimony, Mary Ann Krasnoger's testimony and the statements of Thomas Krasnoger, Jr. that Thomas Krasnoger, Jr. and Mary Ann Krasnoger used the disputed area as their own from 1954 up to the date on which they sold the property to the plaintiff, September 28, 1993. Thomas Krasnoger, Jr., in his application to the Town of East Granby for a building permit dated July 2, 1958, Plaintiff's Exhibit 5, as described above, claimed to the Town that his side yard was 50 ft. from the corner of his proposed garage to his northerly boundary which, as previously stated, showed that he believed the northerly boundary of his property was the northerly boundary of the disputed area. Thomas Krasnoger, Jr. and Mary Ann Krasnoger mowed the lawn in the disputed area, which was open and visible to Thomas Krasnoger, Sr. and Agnes Krasnoger, the owners of the adjoining property at 56 North Road throughout the time that they owned the property and the time the McCorisons owned that property. This includes the time that Mary Krasnoger was temporarily away from the property, but she had others mow the lawn for her and her husband. Neither the McCorisons nor their predecessors in title ever utilized the disputed area as their own. As previously stated, Agnes Krasnoger described the northerly boundary of the disputed area as the northerly boundary of 54 North Road to both the plaintiff and Thomas Krasnoger, Jr., all of which is described in the evidence set forth above. The evidence is overwhelming from Cotton's testimony, the plaintiff's testimony, Mary Ann Krasnoger's testimony and the statements of Thomas Krasnoger, Jr. that Thomas Krasnoger, Jr. and Mary Ann Krasnoger used the disputed area as their own from 1954 up to the date on which they sold the property to the plaintiff, September 28, 1993. Thomas Krasnoger, Jr., in his application to the Town of East Granby for a building permit dated July 2, 1958, Plaintiff's Exhibit 5, as described above, claimed to the Town that his side yard was 50 ft. from the corner of his proposed garage to his northerly boundary which, as previously stated, showed that he believed the northerly boundary of his property was the northerly boundary of the disputed area. Thomas Krasnoger, Jr. and Mary Ann Krasnoger mowed the lawn in the disputed area, which was open and visible to Thomas Krasnoger, Sr. and Agnes Krasnoger, the owners of the adjoining property at 56 North Road throughout the time that they owned the property and the time the McCorisons owned that property. This includes the time that Mary Krasnoger was temporarily away from the property, but she had others mow the lawn for her and her husband. Neither the McCorisons nor their predecessors in the ever utilized the disputed area as their own. As previously stated, Agnes Krasnoger described the northerly boundary of the disputed area as the northerly boundary of 54 North Road to both due plaintiff and Thomas Krasnoger, Jr., all of which is described in the evidence set forth above. The plaintiff testified that during the period he has owned his property, he built a shed on the disputed area, planted bushes, parked a pickup truck and a boat and his children and their friends played in that area, as well as the fact that he mowed the lawn and otherwise took care of the disputed area. Further, even if you were to believe some of the testimony of the defendants that they used the disputed area on occasion prior to 2004, such use does not interfere with the exclusive possession by the plaintiff or Mary Ann and Thomas Krasnoger, Jr. anymore than a delivery person or even a trespasser might occasionally use the disputed area. The defendant, Cameron A. McCorison, testified that he lived with Agnes Krasnoger at 56 North Road from January of 2001 through to about May of 2002 and during that summer of 2001 the plaintiff was mowing the lawn in the disputed area. Further, he testified that he never confronted the plaintiff about his mowing the lawn in the disputed area. (TT 7/6/06, p. 81.) At no time until the Alford survey was done in 2004 did anyone, including the defendants and Thomas Krasnoger, Sr. and Agnes Krasnoger, confront the plaintiff or dispute his open and visible use to them of the disputed area. At no time did Thomas Krasnoger, Sr., Agnes Krasnoger or anyone else dispute the use by the plaintiff's predecessors in title, Thomas Krasnoger, Jr. and Mary Ann Krasnoger, of the disputed area between 1954 to the time they sold the property to the plaintiff. Much of the evidence of this is described above. This Court, therefore, concludes that the use by the plaintiff and by Thomas Krasnoger, Jr. and Mary Ann Krasnoger of the disputed area from 1954 to 2004 was open, visible to anyone including the McCorisons, and Thomas Krasnoger, Sr. and Agnes Krasnoger. Said use by the plaintiff and his predecessors in title were made under a claim of right. To sustain that it was under a claim of right simply means without recognition of the rights of the adjoining property owners which the evidence clearly shows. See Putnam Coffin Burr, Inc. v. Halperin, 154 Conn. 507, 515 (1967). The Court also concludes this open use as described was without resort to permission or license from the McCorisons or their predecessors in title, which permission or license was unnecessary. See Phillips v. Bonadies, 105 Conn. 722, 727 (1979). The plaintiff has sustained his burden of proving this element by clear and convincing evidence.
2. The second element requires continuous or uninterrupted use for a period of at least fifteen years. Since the Court has already concluded that this use as described above took place from 1954 to 2004, a total of fifty years, the only question remaining is in order to accomplish the fifteen years, can the ownership and usage by Thomas Krasnoger, Jr. and Mary Ann Krasnoger tack on to the ownership and use by the plaintiff. "It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years, whether by one or more persons (emphasis added). This was settled in Fanning v. Wilcox, 3 Day 258. Doubtless the possessions must be connected and continuous . . . but such continuity and connection may be effected by any conveyance, agreement or 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, 31 Conn. 530, 532 (1863). This case dating back to 1863 may be old, but it is still good law and allows tacking together in order to have a continuous open use and possession. That is exactly the case here in which Thomas Krasnoger, Jr. and Mary Ann Krasnoger had possession and use of the disputed area from 1954 to 1993, and they sold such area to the plaintiff on September 28, 1993 who then took possession and continued said possession and the aforesaid use to date and without objection until 2004. With tacking allowed as here, the continuous possession and use was for a period of fifty years and meets the requirement mentioned above of fifteen continuous years.
3. As stated above, the third element is that the use by the plaintiff and his predecessors in title must be under a claim of right simply means without recognition of the rights of the adjacent property owners. No permission or license was required from the defendants McCorisons or their predecessors in title, and the open use without resort to such permission or license, establishes that the plaintiff and his predecessors in title were users as of right. See Aksomitas v. South End Realty, 136 Conn. 277, 283.
The plaintiff has cited the case of Loewenberg v. Wallace, 151 Conn. 355, 357 (1964) for the proposition that in order to have adverse possession, the possession does not have to be hostile. All that is necessary as stated above in Aksomitas, supra, is the use has to be without resort to permission or license from the alleged owner, in this case the adjoining property owners to the north of 54 North Road. Further, in Reynolds v. Soffer, 190 Conn. 184, 188 (1983). "All that is required is a showing by a fair preponderance of the evidence that the use was adverse." "It was not, as the defendant suggests, that the plaintiff's burden to establish that his use of the property was without permission. Such a rule would often charge a party with proving a negative." Lisiewski v. Seidel, 72 Conn.App., 88, 87 (2002). Therefore, this Court agrees with the plaintiff that he does not have to show that the use was hostile.
The Court includes herein by reference all of the evidence described above.
Accordingly, the plaintiff has met his burden of proof by showing by clear and convincing evidence that the use of the disputed area was open, visible, exclusive, continuous and uninterrupted for at least fifteen years and made under a claim of right.
Assuming arguendo that the plaintiff does not have title to the disputed area, the Court finds by clear and convincing evidence, that the plaintiff has a right to the disputed area shown on Plaintiff's Exhibit 4, by adverse possession. The disputed area is slightly different from that shown on Plaintiff's Exhibit 4. Based upon the testimony as described above and included herein, the northerly boundary of the plaintiff's property begins at a point opposite the middle of the driveway across North Road, proceeding easterly through the base of the weeping cherry tree, which has been cut down, then easterly by the blueberry bushes into the woods for a distance of 200 ft., then running at a 90 ° angle, a distance of 130 ft. across the back portion of the land of the plaintiff, thereby enclosing the disputed area. The northerly boundary commences on North Road and moves easterly at a 90 ° angle at its intersection with North Road.
COUNT III: Prescriptive Easement:
The elements necessary to prove a prescriptive easement over the disputed area as claimed by the plaintiff are essentially the same as the elements for adverse possession although the burden of proof is merely by a preponderance of the evidence. See Aidinoff v. Lathrop, judicial district of New London at New London, May 11, 2006, Superior Court No. 4000916, 2006, Ct.Super. 8645, D. Michael Hurley, JTR. [ 41 Conn. L. Rptr. 354] Conn. Gen. Stat. § 47-37 is the authority for a prescriptive easement which states: "When acquired by adverse use. 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." All elements of a prescriptive easement have been proven, not by a preponderance of the evidence, but by clear and convincing evidence as in the case of the preceding paragraph on adverse possession. All of the evidence described above is incorporated herein by reference. Based upon the findings in Count I, the Court finds by clear and convincing evidence, that the plaintiff and the plaintiff's predecessors in title have openly, notoriously and adversely used, without interference, the disputed area for an uninterrupted period of fifteen years. Accordingly, the Court finds that the plaintiff has a prescriptive easement over said area. That area is more accurately described with the commencement of the northerly boundary at North Road running easterly at a 90 ° angle as stated in the paragraphs concerning Count I.
COUNT IV: Misrepresentation Against the Defendant Mary Ann Krasnoger: Plaintiff claims that said defendant made oral and written representations as to the location of the boundaries of the land being sold to the plaintiff at 54 North Road, East Granby. However, it was partly on the basis of the testimony of said defendant that the Court found the boundaries as claimed by the plaintiff. Accordingly, there was no misrepresentation, and judgment is entered in favor of the defendant Mary Ann Krasnoger on this count. COUNT V: Breach of Contract Against Mary Ann Krasnoger: Since the finding of this Court as to Count II has been based in part on the testimony and statements of said defendant Krasnoger and the fact that this Court has found that the plaintiff owns in fee simple the land as described in Count II, Quiet Title, there is no breach of warranty on the deed transferring 54 North Road from the defendant Krasnoger and her late husband to the plaintiff. Accordingly, on this count, judgment is entered in favor of the defendant, Krasnoger.CONCLUSION:
In sum, the Court, by clear and convincing evidence, hereby grants judgment in favor of the plaintiff on Counts I, II, III and in favor of the defendant Mary Ann Krasnoger on Counts IV and V.