Opinion
NNHCV115034001S
01-19-2017
Ronald F. Bozelko v. Statewide Construction, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Richard E. Burke, Judge Trial Referee.
The plaintiff, Ronald F. Bozelko, seeks to quiet title under C.G.S. Section 47-31 to 105 McLay Avenue, East Haven, Connecticut (" 105 McLay") against the defendants, Statewide Construction, Inc. and Robert Pesapane.
The Plaintiff asserts that he is the owner of 105 McLay and seeks to quiet title thereto pursuant to Section 47-31 C.G.S. 105 McLay is more particularly described as follows:
All that certain piece of parcel of land shown on a map entitled " Subdivision Plan for Laurelwood Estates, Granniss Street, East Haven, Connecticut, Scale 1" = 40', dated May 23, 1985, January 30, 1986, Rev. February 21, 1986, Rev. May 15, 1986, Rev. July 31, 1986, Rev. July 31, 1986, Rev. Sept. 25, 1986, Rev. October 14, 1986, Rev. February 24, 1987, Revised Lots 18 & 26, Rev. March 11, 1988, Cert. Added Nov. 17, 1987, Rev. June 25, 1987" which map is on file as Map No. M-1675 in the East Haven Town Clerk's Office and bounded and described as follows:
NORTHERLY: by Lots 50, 51, and 52, 133 feet, more or less as shown a map entitled " McLay Heights, East Haven, Conn. Scale 1" = 50 ft., Sept. 15, 1924" on file in the East Haven Town Clerk's Office as Map No. 232;
EASTERLY: by Jessie Street, 55 feet, more or less;
SOUTHERLY: along McLay Avenue by the arc of a curve having a radius of 350.00 feet in distance of 181.22 feet.
The Plaintiff argues the following: that he acquired his title by deed from Chalja, LLC (Chalja) dated July 28, 2010 and recorded on July 30, 2010 in Volume 2156 on Page 065 of the East Haven Land Records being the third piece set forth in the deed. Chalja acquired its title by deed from Laurelwood Associates, Inc. dated May 9, 2005 and recorded in Volume 1728 on Page 255 of the East Haven Land Records. Laurelwood Associates, Inc. acquired its title by a deed from Joseph J. Farricelli, recorded in Volume 351 on Page 86 of the East Haven Land Records.
First Amended Complaint.
The defendants responded by asserting that Statewide Construction, Inc. is the owner of the property known as 105 McLay Avenue, East Haven, Connecticut by virtue of a Quit Claim Deed from the Town of East Haven to Statewide Construction, Inc. dated August 1, 2005 and recorded August 2, 2005 in Volume 1715 at Page 70 of the East Haven Land Records. In addition, Robert Pesapane is the owner of a portion of the property known as 105 McLay Avenue, East Haven, Connecticut by virtue of a Quit Claim Deed from Statewide Construction, Inc. to Robert Pesapane, dated October 13, 2005 and recorded October 14, 2005 in Volume 1743 at Page 226 of the East Haven Land Records.
Answer.
LAW
QUIETING TITLE
The essential elements of this action are that the plaintiff claims title to the property and that the action is brought against such persons claiming an interest in the property that is adverse to that of the plaintiff. See Gager v. Carlson, 146 Conn. 288, 289, 150 A.2d 302 (1959); Gaul v. Baker, 105 Conn. 80, 84, 134 A. 250 (1926); Foote v. Brown, 78 Conn. 369, 377, 62 A. 667 (1905). General Statutes § 47-31 provides in relevant part: " (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. (b) The complaint in such action shall describe the property in question and 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 the adverse estate or interest . . . (d) Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived . . . (f) The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property."
In Swenson v. Dittner, 183 Conn. 289, 292, 439 A.2d 334 (1981), our Supreme Court stated: " An action to quiet title is a statutory action instituted under the provisions of . . . § 47-31. The statute requires the plaintiffs to name the person or persons who may claim such adverse estate or interest . . . Only the parties to an action to quiet title are bound by the judgment . . . The failure to include [an interested party therefore] is not error because the decision to join a party in a suit to quiet title is made by the plaintiff." (Citations omitted.) Id. ; but see Gemmell v. Lee, 42 Conn.App. 682, 685, 680 A.2d 346 (1996) (failure to join interested party in action to quiet title deprives court of subject matter jurisdiction).
" The plaintiff [is] required not only to allege but to prove that its title was so affected by the claims of the [defendant] to justify the litigation . . . [T]he plaintiff [is] required to prevail on the strength of its own title and not on the weakness of its adversary's . . . An action to quiet title is one quasi in rem, and it lies against those who, at the time it is instituted, are the present claimants to the land under the instrument which creates the cloud . . ." (Citations omitted.) Lake Garda Imp. Ass'n v. Battistoni, 155 Conn. 287, 293-94, 231 A.2d 276 (1967).
" Although § 47-31(b) governs the contents of the complaint, § 47-31(d) commands that [e]ach defendant shall, in his answer, state, such that a counterclaim under § 47-31 must satisfy subsection (d) and not subsection (b) because subsection (d) governs how a defendant must respond to a complaint, which would include the filing of a counterclaim. Under § 47-31(d), a defendant is required only to make a claim against the property already brought into issue by the plaintiff under § 47-31(b), such that it would be duplicitous for the defendant's counterclaim against the plaintiff to be required to satisfy § 47-31(b), especially since § 47-31(d) is delineated separately to direct defendants how to respond by answer. Furthermore, if a pleading in accordance with § 47-31(d) is sufficient for a defendant to quiet title as to a disputed parcel, it also should be sufficient for a counterclaim plaintiff to use to quiet title." (Internal quotation marks omitted.) 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 797, 54 A.3d 232 (2012).
DEDICATION OF LAND TO PUBLIC USE
" Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use and in behalf of the public . . . [T]wo elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) . . . accepted by the proper authorities or by the general public." (Citations omitted; internal quotation marks omitted.) A& H Corp. v. Bridgeport, 180 Conn. 435, 438-39, 430 A.2d 25 (1980).
I. Dedication
" Whether a parcel of land has been dedicated to a public use by the owner of the fee and accepted for such use by and in behalf of the public are questions of fact for the trier . . . An implied dedication which may arise by operation of law from the acts and conduct of a property owner must be such that his intention is clearly manifest to devote land to the public use . . ." (Citation omitted.) Mihalczo v. Woodmont, 175 Conn. 535, 542, 400 A.2d 270 (1978). " No presumption of an intent to dedicate arises unless it is clearly shown by the owner's acts and declarations, or by a line of conduct the only reasonable explanation of which is that a dedication was intended." (Internal quotation marks omitted.) La Chappelle v. Jewett City, 121 Conn. 381, 386, 185 A. 175 (1936). " [M]ere permission on the part of the owner to the public to use the land as a way, without more, will not constitute an intention to dedicate, since a temporary right to use a private way is in the nature of a mere license, revocable at pleasure, and does not in any sense establish the requisite intent. Accordingly, mere permissive use of land . . . does not of itself constitute a dedication nor demonstrate a dedicatory intention." (Internal quotation marks omitted.) Mihalczo v. Woodmont, supra, 543.
II. Timely Acceptance
" [C]ommon-law acceptance of property dedicated to the public for a public way may be established by the public's actual use of the property or by the actions of the municipality . . . The public's use of the property must continue over a significant period of time . . . and be of such character as to justify a conclusion that this was of common convenience and necessity . . . The municipal actions that may constitute acceptance include grading, paving, maintaining and improving a street, as well as removing snow from it; the street's exemption from taxation may also be significant." (Citations omitted.) A& H Corp. v. Bridgeport, supra, 180 Conn. 440-41. " [T]o be effectual an acceptance must occur within a reasonable period of time after the intent to dedicate the property has been manifested . . . The mere lapse of time, in itself, is not determinative . . . In DiCioccio [ v. Whethersfield, 146 Conn. 474, 481, 152 A.2d 308 (1959)], for example, we upheld acceptance after 18 years. Other factors, such as the need and convenience of the public and the pace of the growth of the community, are also relevant considerations . . . Ordinarily, what constitutes a reasonable length of time is largely a question of fact to be determined in light of the particular circumstances of each case." (Citations omitted.) Katz v. West Hartford, 191 Conn. 594, 598, 469 A.2d 410 (1983).
" [A]ctual use need not necessarily be constant or by large numbers of the public." (Internal quotation marks omitted.) Granby v. Feins, 154 Conn.App. 395, 403, 105 A.3d 932 (2013).
III. Public Use
" [P]ublic use is generally defined as public usefulness, utility or advantage, or what is productive of general benefit . . . Although [a] public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication or transportation . . . Courts as a rule, instead of attempting judicially to define a public as distinguished from a private purpose, have left each case to be determined on its own peculiar circumstances. Promotion of the public safety and general welfare constitutes a recognized public purpose . . . The modern trend of authority is to expand and liberally construe the meaning of public purpose. The test of public use is not how the use is furnished but rather the right of the public to receive and enjoy its benefit . . . Without attempting to provide a definition, it is fair to say that a public use may encompass a wide range of uses contemplated by a municipality for the general benefit of the public." (Citations omitted; internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 14-15, 931 A.2d 837 (2007).
FINDINGS
The Plaintiff argues that the Defendants were required to testify, they did not, and that they therefore failed to meet their burden of proof. However, the language of C.G.S. Sec. 47-31 has no such requirement.
Plaintiff's Post-Trial Brief, August 31, 2016 at 4.
Dedication
The Plaintiff argues that the Town of East Haven never owned 105 McLay. And, as a result the Defendant's claims to title are defective. The Defendants convincingly dispatched this claim.
" Of utmost importance in determining ownership of 105 McLay Avenue is the intent of the original owner of the property in the chain of title. The original deeds (Defendants' Exhibits B and C) incorporated a map entitled " McLay Heights, East Haven, Conn., Scale 1 in = 50 ft. Sept. 15, 1924" (Defendants' Exhibit D), which included a portion known as McLay Avenue. Attorney Ioime testified that the recording of the aforementioned " McLay Heights" subdivision map with the East Haven Town Clerk would raise the presumption that the owner or developer was dedicating McLay Avenue for public use. (TR, 4/28/16, p. 108.)"
Supra 2 at 9-10.
Implied Acceptance
There was a great deal of evidence presented at trial to prove that the Town of East Haven considered McLay Avenue and 105 McLay Avenue to be town property. Michael Milici, Assessor for the Town of East Haven testified credibly that it was his understanding that 105 McLay Avenue had been owned by the Town of East Haven and was to Statewide Construction, Inc. (TR, 4/28/16, p. 103.) In addition, he testified that the town was maintained by the town. Said maintenance included, e.g., repairs and plowing. (TR, 4/28/16, p. 104-05.)
Id. at 11.
The defendant's expert witness, Attorney Daniel Ioime, testified credibly, that the Plaintiff does not own 105 McLay. While Plaintiff argues that there is an ordinance which affected the title to 105 McLay, there is a Schedule A which did not apply to 105 McLay. Moreover, Plaintiff asserted that the property was abandoned, that does not apply to 105 McLay. The Defendants, Robert Pesapane and Statewide Construction own 105 McLay in various proportions.
Both the Plaintiff and the Defendants use the same chain of title, but the Defendants convincingly assert that the metes and bounds of the Plaintiff's deeds do not reach the triangle known as 105 McLay. The Plaintiff testified that the deed from Laurelwood Associates, Inc. to Granniss Street Associates (Defendants' Exhibit L--No. 8 above), which is his chain of title and upon which he relies in establishing title, does not include 105 McLay Avenue. (TR, 4/5/16, p. 157-58 . . .)
Exhibit 13 CHAIN OF TITLE FOR 105 MCLAY AVENUE, EAST HAVEN, CT
Defendants Statewide Construction, Inc. and Robert Pesapane's Post-Trial Brief, September 5, 2016 at 3.
As further convincingly asserted by the Defendants, the map appended to the deed from Joseph Farricelli to Laurelwood Associates " and all successive deeds, known as " Map Showing Property to be acquired by Joseph J. Farricielli from the Town of East Haven, East Haven, Connecticut Scale 1" = 40' August 31, 1982, Revised June 7, 1983 Sheet 1 of 2" prepared by Gordon Bilides, P.E. (Defendants' Exhibit H) . . . completely destroys the Plaintiff's argument that he is the owner of 105 McLay Avenue because, by the Plaintiff's own testimony (TR, 4/5/16, p. 157-58) and that of the Defendants' expert (TR, 4/28/16, p. 55-61), 105 McLay Avenue is not contained in the map and accompanying deed descriptions. (Defendants' Exhibit H.)
Id.
Easement of Necessity
The Defendants take the position that if they fail on their claim of ownership of 105 McLay, that the court should find that there is an easement of necessity. However, since the court has determined that the Defendants, in fact, are the owners of 105 McLay, there is no need to determine the issue of an easement of necessity. Plaintiff had incorrectly taken the position that the Defendants waived their right to claim ownership of the property by pleading in the alternative.
JUDGMENT
The Court enters the following judgment: (1) Statewide Construction, Inc. and Robert Pesapane are the owners of the property identified by Plaintiff as 105 McLay Avenue, and Ronald Bozelko and any of his predecessors and/or successors in interest have no right, title, or interest in or to that property; (2) the property known as 99 McClay Avenue, which is owned by Statewide Construction, Inc., extends all the way to the current street line of McLay Avenue and includes to the center of McLay Avenue; (3) any line, notice, affidavit, etc. filed by the Plaintiff in the Town of East Haven Land Records in the past or filed in the future relating to this property does not constitute a valid encumbrance, is null and void, and does not render the title unmarketable.
Chain of Title Warranty Deed from Lyman A. Grannis to John H. Howe dated July 9, 1924 and recorded in Volume 57 on Page 574 of the East Haven Land Records. Warranty Deed from John H. Howe to Gertrude H. LaBell dated October 21, 1925 and recorded in Volume 62 on Page 123 of the East Haven Land Records. Judgment (of Strict Foreclosure) in favor of The Town of East Haven Gertrude H. LaBell, Emma G. McLay and East Haven Realty & Mortgage Company dated May 23, 1972 and recorded in Volume 257 on Page 527 of the East Haven Land Records. Quit Claim Deed from Town of East Haven to Joseph Farricelli dated January 24, 1985 and recorded in Volume 351 on Page 83 of the East Haven Land Records. Warranty Deed from Joseph J. Farricelli to Laurelwood Associates, Inc. dated February 22, 1985 and recorded in Volume 351 on Page 86 of the East Haven Land Records. Quit Claim Deed from Laurelwood Associates, Inc. to Edward Coventry and Walter T. Nichols dated December 13, 1985 and recorded in Volume 361 on Page 575 of the East Haven Land Records. Quit Claim Deed from Edward Coventry and Walter T. Nichols to Laurelwood Associates, Inc. dated June 30, 1986 and recorded in Volume 369 on Page 820 of the East Haven Land Records. Warranty Deed from Laurelwood Associates, Inc. to Granniss Street Associates dated November 24, 1987 and recorded in Volume 459 on Page 201 of the East Haven Land Records. Easement from Granniss Associates to the Southern New England Telephone Company dated August 21, 1988 and recorded in Volume 505 on Page 093 of the East Haven Land Records. Warranty Deed from Laurelwood Associates, Inc. to Chalja, LLC dated May 19, 2005 and recorded in Volume 1728 on Page 255 of the East Haven Land Records. Quit Claim Deed from Chalja, LLC to Ronald F. Bozelko dated July 28, 2010 and recorded in Volume 2156 on Page 65 of the East Haven Land Records.