Opinion
No. CV07-5002459 S
June 3, 2009
MEMORANDUM OF DECISION
INTRODUCTION
This action for adverse possession of certain property located in New Fairfield, Connecticut was tried to the court on January 9, 2009. The parties filed post-trial briefs on February 9, 2009.
Plaintiffs Robert J. Campanelli and Linda DiSarro (jointly referred to as "Campanellis") brought this action asserting that they have acquired title to certain property located at 20 Brook Drive, New Fairfield, Connecticut by adverse possession. The Campanellis are record owners of real property located at 18 Brook Drive, New Fairfield which is adjacent to the property which is the subject of this action and which is described in Exhibit A to the amended complaint. In their amended complaint, plaintiffs allege that for more than fifteen years prior to commencement of this action they used and enjoyed the property at 20 Brook Drive, and that said use has been open, visible, notorious, adverse, exclusive, continuous and uninterrupted. Plaintiffs claim that as a result of said use, they have acquired title to the property at 20 Brook Drive by adverse possession.
In their amended complaint dated January 7, 2009, plaintiffs also allege that the defendant, Candlewood Hills Tax District ("CHTD"), is a tax district and, as such, is a quasi-municipal corporation governed by the laws applicable to municipal corporations and that CHTD owns property known as the frontage to lot 57, 18 Brook Drive and lot 69, 20 Brook Drive ("20 Brook Drive") which allegations the defendant CHTD admits. In addition to alleging the elements necessary to establish their adverse possession claim as required by Connecticut General Statutes § 52-575(a), plaintiffs assert that CHTD does not hold 20 Brook Drive for public use.
FINDINGS OF FACT
The property at issue owned by CHTD, 20 Brook Drive, is located at the end of a cul-de-sac road which is part of Candlewood Hills Taxing District. Plaintiffs' property, 18 Brook Drive, is located adjacent to 20 Brook Drive. The CHTD property is partially wooded undeveloped land, a portion of which is located in wetlands. Evidence and testimony at trial indicated that the plaintiffs used an area of the subject CHTD property for their own purposes over the last twenty years. Robert J. Campanelli put in fill, seeded it and mowed the grass on a portion of 20 Brook Drive. He also stored a large pile of wood and parked his trailer on the land. CHTD was aware of the woodpile and trailer and told him to remove them. Campanelli did not obtain permission from CHTD to store items on the property or to conduct maintenance activities.
In 2004, Campanelli purchased a chain and lock which he installed using other materials which he had at the entrance to 20 Brook Drive. After the CHTD manager cut the lock, Campanelli wrote to the CHTD tax collector, business manager and CHTD board on December 27, 2004 in protest and claimed that he was entitled to continue to use the property as he had for over twenty years. (Pl. Exh. 7.) In this letter he also claimed to have protected 20 Brook Drive "from illegal dumping on a wetlands site," and advised the CHTD about the need for tree, drain and road maintenance. In this letter, Campanelli deducted the cost of the materials and labor related to the post and chain installation from his tax bill due February 1, 2005. (Pl. Exhs. 6, 7.) On February 11, 2005, in response to Campanelli's letter, Nancy Laedke, tax collector and business manager for CHTD, rejected the payment and credit claim, returned Campanelli's check and issued a new statement charging the full assessment with interest for late payment. (Pl. Exh. 8.) These actions, while well intentioned, are more voluntary than possessory in nature.
It is not clear exactly what portion of 20 Brook Drive plaintiff claims to have acquired nor whether it was actually continuous over the twenty year period. It also is noteworthy that plaintiffs did not specifically identify the area they claim to have acquired. Although Campanelli engaged in a number of activities in the area where 20 Brook Drive adjoins his property CHTD opposed all of them regardless of which portion of the lot he used, i.e., the area near the road or adjacent to his lot. The CHTD Board was vehement in its opposition to Campanelli's claims. As noted above, when Campanelli stacked firewood on pallets on 20 Brook Drive, CHTD advised him in writing to remove the wood. (Def Exh. W.) When he refused to remove the firewood, CHTD dumped it back onto his property. (Pl. Exh. 9.) Ms. Walker's removal of the lock, in her capacity as Board member of CHTD, was further evidence of CHTD's opposition to any possessory claim by Campanelli.
With respect to usage of the property in question by CHTD, evidence presented at trial established that during the twenty year period in question CHTD held 20 Brook Drive for public usage, including disposal of excess plowed roadway snow, maintaining storm drains and allowing CHTD members to dispose of decomposable items. CHTD presented evidence that the Town of New Fairfield notified it on October 15, 2004 to cease and desist from using the property as a community dumping site because it is located in a designated wetlands area and that it advised plaintiffs of this prohibition. (Def. Exh. P., W.) Maintenance issues relating to 20 Brook Drive were considered by the CHTD board on the agenda of its regularly scheduled meetings. (Def Exhs. Q, R, U.) CHTD also installed No Trespassing signage and a locked gate to deter private users and to the extent possible, insure use only by those who were authorized by CHTD. (Pl. Exh. 1.)
ADVERSE POSSESSION
Defendant CHTD does not dispute the actions of the plaintiffs which occurred on its property over sufficient time to satisfy the statutory requirement to establish adverse possession. However, CHTD claims that as a quasi-municipal corporation, it is immune from claims of adverse possession because it is presumed to hold the property in question for public use. In support of its position, CHTD primarily relies on the court's decision in American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 79-80, 574 A.2d 796 (1990). CHTD claims that the evidence presented is insufficient to rebut this presumption of public use which applies to it as a result of its quasi-municipal status.
The recent decision in Guernseytown Farms, LLC v. Sitsis, Superior Court, judicial district of Waterbury, Docket No. CV07-5005755S (December 23, 2008, Alvord, J.) contains a comprehensive statement of the law of adverse possession as applied by Connecticut courts:
"The doctrine of adverse possession is to be taken strictly." (Internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 499, [442] A.2d 911 (1982). Adverse possession is governed in Connecticut by § 52-575(a). "To 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.) Allen v. Johnson, 79 Conn.App. 740, 744, 831 A.2d 282, appeal denied, 266 Conn. 929, 837 A.2d 802 (2003); See also Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968); Devita v. Esposito, 13 Conn.App. 101, 106, 535 A.2d 356 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988) . . . "[T]he claimant's possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use." (Emphasis in original.) . . ." `It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.' (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 502-03, 442 A.2d 911 (1982)." Eberhart v. Meadow Haven, Inc., [ 111 Conn.App. 636, 642, 960 A.2d 1083 (2008)].
"A finding of adverse possession is to be made out by clear and positive proof. Clear 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. The burden of proof is on the party claiming adverse possession." Allen v. Johnson, supra, 79 Conn.App. 745. See also Eberhart v. Meadow Haven, Inc., supra, 111 Conn.App. 640.
Guernseytown Farms, LLC v. Sitsis, Superior Court, judicial district of Waterbury, Docket No. CV07-5005755S (December 23, 2008, Alvord, J.).
Plaintiffs have alleged and defendant admits that CHTD is a tax district and subject to municipal law. Because this case involves a claim of adverse possession against a defendant taxing district, a quasi-municipal corporation, the court will look to cases involving other municipal or quasi-municipal corporations. In particular, principles of municipal law have been held to apply to validly formed municipal taxing districts such as the defendant CHTD. "Certain fundamental principles underlie this dispute. If legally created, the Crescent Lake Tax District is a quasi-municipal corporation. Alarm Applications, Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 547, 427 A.2d 822 (1980); Larkin v. Bontatibus, 145 Conn. 570, 576, 145 A.2d 133 (1958); 1 E. McQuillin, Municipal Corporations (3d Ed.) 2.29. Quasi-municipal corporations are governed by the law applicable to municipal corporations. Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra." Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987).
It is well settled that land held by the state or any of its subdivisions cannot be acquired by adverse possession to the extent that the property is held for a public use. Deer Island Ass'n. v. Trolle, 181 Conn. 201, 202, 435 A.2d 10 (1980); Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 276, 429 A.2d 865 (1980). A public entity may be immune from adverse possession to the extent that the property against which a claim has been asserted is held for public use. Goldman v. Quadrato, 142 Conn. 398, 403, 114 A.2d 687 (1955). The definition and scope of public use of land by a municipality or quasi-municipal corporation is central to the court's decision in this case.
In American Trading Real Estate Properties, Inc. v. Trumbull, supra, 215 Conn. 79-80, the Connecticut Supreme Court expanded the concept of public use which applies to immunity of municipal land from claims of adverse possession. Citing a long history of cases, the Connecticut Supreme Court in American Trading Real Estate Properties, Inc. v. Town of Trumbull, supra, analyzed the public use requirement as it applies to municipal and quasi-municipal corporations challenged by adverse possession claims.
The court first noted that public rights to municipal property will not be forfeited by lack of use absent some additional evidence indicating that the municipality intended to abandon the property. See Appeal of Phillips, 113 Conn. 40, 45, 154 A.238 (1931); Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978). No such intention is evident in this case. The court further found that a municipality claiming immunity from adverse possession need not prove "actual" or "present" use of the land in order to establish that the land in dispute is held for public benefit. The fact that property is not presently being used for a public purpose or that it "is not at present particularly attractive or useful . . ." does not defeat a claim of municipal immunity from claims of adverse possession. Fenwick v. Old Saybrook, 133 Conn. 22, 24, 47 A.2d 849 (1946). According to the court:
The central message of this line of cases is that land is indeed held for public use even when a municipality is not presently making use of the land but is simply holding it for development at some later time. Absent some evidence of municipal intention to abandon its plans for future development of the municipal property, the land is immune from claims of adverse possession.
The trial court's narrow definition of the term public use suffers from the additional weakness that it excludes the possibility of uses that may be highly beneficial to the public but that do not involve the type of physical intrusion on the land that the "actual public use" standard appears to contemplate. A municipality might, for example, elect to buffer a park from encroaching development by maintaining undeveloped property adjacent to the park. Similarly, a municipality might attempt to preserve the character of the community by acquiring "open space" land or "greenbelts" or might seek to protect wildlife or inland wetlands by purchasing land to be left in an undisturbed state. A standard of public use that fails to include such uses would do a great disservice to these commendable efforts to protect the environment.
American Trading Real Estate Properties, Inc. v. Town of Trumbull, supra, 79-80.
Rejecting the trial court's narrow definition of the term public use because it excludes the possibility of beneficial uses of undeveloped public land, e.g. environmental protection, the court continued, "In light of the myriad of public uses that may be advanced through public ownership of undeveloped lands, we also hold that property that is held in fee simple ownership by municipalities must be presumed to be held for public use." Id., 80. As a result, the party seeking adverse possession against a municipality bears the burden of rebutting the presumption that a municipality holds land for public use. "Municipal immunity from adverse possession is the rule and not the exception, and we have consistently held that the party seeking to acquire title by adverse possession bears the burden of proving all the elements of adverse possession." (Citations omitted.) Id., 80. The court further reasoned, "Moreover, the rationale underlying the immunity of municipalities from adverse possession, that the public should not lose its rights to property as a result of the inattention of a governmental entity; see G. Thompson, Real Property (1979) § 2556, p. 694; applies with greater force to situations involving undeveloped lands, which may by their nature, garner even less attention from local governments suffering from the constraints of scarce fiscal resources." Id., 80-81. This rule as applied in the above case to the Town of Trumbull applies with equal force to a validly established tax district such as CHTD.
This case represents a classic application of the above doctrine in the context of a quasi-municipal corporation. Plaintiffs' amended complaint alleges that CHTD is a quasi-municipal corporation and owns the property in question, but does not hold the subject property for public use. Plaintiffs failed to offer sufficient evidence to rebut the presumption that CHTD holds the subject property for the public use.
Plaintiff ignores the extensive line of case law and the Supreme Court's explanation in American Trading Real Estate, Inc. v. Trumbull, supra, of the concept of public use as it applies to claims of adverse possession against land held by municipal or quasi-municipal corporations. It is clear that land held by a quasi-municipal corporation such as CHTD need not be developed in order to qualify for public use immunity. As stated above, courts have recognized valid public use in land held as open space, nature preserve, environmentally protected or as a buffer zone. It appears that at least a portion of 20 Brook Drive was subject to environmental restrictions under the town Inland Wetlands and Watercourses regulations.
Plaintiffs further argue that CHTD cannot claim it held 20 Brook Drive for public use because it considered building a community center on the property. Contrary to plaintiffs' arguments, evidence regarding the unsuccessful community center proposal does support their claim that CHTD did not hold the property for public use. Goldman v. Quadrato, supra, 403, upon which plaintiffs rely, recognized that the public use requirement could be satisfied even if a property is not presently subject to public use so long as it is held with an intention to develop it at some point in the future. The evidence presented regarding the CHTD's desire to construct a community center on 20 Brook Drive supports the finding by the court that CHTD intended the property to be used for the benefit of the members of the defendant quasi-municipal corporation. Rather than defeat CHTD's public use of 20 Brook Drive, this evidence supports the claim of public use under Goldman v. Quadrato, supra, and is stronger than the court would require under American Trading Real Estate Properties, Inc., supra. More important and to the point in this case, however, is the analysis and holding some twenty-five years later of the Supreme Court in American Trading Real Estate Properties, Inc. v. Trumbull, supra, which distinguishes the decision in Goldman v. Quadrato and the cases on which it relied.
Furthermore, the standard of proof for a party claiming ownership by adverse possession where the property is held by a municipality is clear and convincing proof, a higher burden than preponderance of the evidence. Ruggiero v. Town of Fairfield, 2 Conn.App. 89, 477 A.2d 668 (1984). It is thus plaintiffs' burden in this case to prove their right to adverse possession against CHTD's use of the property by clear and convincing evidence.
Defendant used 20 Brook Drive for community based activities over the years, which included permitting CHTD property owners to dump waste, dumping debris from CHTD property maintenance, depositing excess snow and maintaining storm drainage. CHTD also posted "No Trespassing" signs on the property. Because a portion of 20 Brook Drive is designated wetlands by the Town of New Fairfield, the Town of New Fairfield cited CHTD for illegal use of the property to store community waste in October 2004. (Notice of Violation dated October 15, 2004, from Town of New Fairfield, Inland Wetlands Watercourse Office (Def. Exh. P); The Notice refers to the defendant's use of the property in question (20 Brook Drive, New Fairfield, CT) and specifically orders defendant "to immediately discontinue the activities and filling, in and around the brook and wetlands located in the area around your property . . ." CHTD referred to this notice when it wrote to Campanelli advising him to remove wood he stored on the property (Def. Exh. W).
The fact that Campanelli planted and mowed grass on an area of 20 Brook Drive which abutted his property, parked his trailer there and periodically cleared the storm drain on or near the property is insufficient to establish a claim of adverse possession of publicly held property. "It is well settled law that sporadic trespasses, such as the entry to remove cars, random appearances on the property, the planting of shrubbery or the mowing of lawns is not enough to show that possession was open and notorious. Robinson v. Myers, supra, 156 Conn. 517-18.
Plaintiffs' reliance on the "No Trespassing" signs CHTD placed on the property to defeat its claim of immunity as property held by the municipal corporation for public use is misplaced. The very fact that CHTD responded to the Town of New Fairfield's Inland Wetlands and Watercourses order that CHTD take steps to secure the property from dumping and other unlawful use, posting "No Trespassing" signs and installing a fence and chain on the property line, were affirmative actions by CHTD supporting its claim of quasi-municipal ownership.
CONCLUSION
Having considered the testimony of the parties and witnesses, evaluated their credibility, reviewed the exhibits, and evaluated the relevant statutory and case law, the court finds that the plaintiff failed to satisfy the burden of rebutting the presumption that the defendant in this case as a quasi-municipal corporation held the subject property for public use and as such the property was immune from a claim of adverse possession. Since the public use by CHTD occurred over the full course of the period of time of plaintiffs' alleged possessory claim and is dispositive, it is not necessary for the court to consider their arguments as to the remaining elements of adverse possession. Accordingly, judgment shall enter for the defendant.