Opinion
No. HDSP-122789
November 14, 2003
OVERVIEW
This case concerns a dispute over a forty feet by 150 feet tract of land (hereinafter the "property in dispute"). The plaintiffs, Anthony and Claudia Chambers, own an 11.38 acre parcel of land at 73 Barbonsel Road in East Hartford (hereinafter the "plaintiffs' property"). The defendants, Raymond and Jean Lavoie, own a parcel of land at 47 Godar Terrace (hereinafter the "defendants' property"). The rear boundary of the defendants' property abuts the plaintiffs' property.
The property in dispute is a portion of the plaintiffs' property. The property in dispute extends forty feet into the plaintiffs' property from the rear boundary of the defendants' property. The plaintiffs are seeking eviction of the defendants from the property in dispute. The defendants are seeking, through counterclaim, possession of the property in dispute by adverse possession.
FACTS
The court finds the following facts. In 1955, the defendants purchased the property at 47 Godar Terrace in East Hartford, Connecticut. Shortly thereafter, the defendants began to use portions of the property in dispute, an area of approximately 150 feet wide and 40 feet long. The defendants planted a 42 feet by 26 feet garden and built a watering system for the garden. The defendants erected a fence around the 42 feet by 26 feet area. In addition, the defendants built a playhouse or "fort" for their children that stood on the property in dispute for seven (7) years. Also, the defendants installed a swing set, sandbox, and horseshoe pit on the property in dispute over the years. The defendants used the property in dispute to ride their dune buggies. In effect the children utilized the property in dispute as a play area.
Defendants' Ex. Q.
A path on the property in dispute was traversed frequently by the defendants and persons other than the defendants. The defendants never erected any permanent structures on the property in dispute. The defendants never made any oral claim to ownership of the property in dispute. The defendants knew that they did not own the disputed property.
On August 21, 2001, the plaintiffs purchased the property at 73 Barbonsel Road from Martin Carangelo. The plaintiffs, after discovering the use of their property by the defendants, offered a personal, non-exclusive license to the defendants that would allow the defendants specific use of the property in dispute. The defendants refused the license. On January 23, 2003, the defendants were served with the notice to quit possession of the property in dispute alleging that the defendants never had a right to occupy and possess the property in dispute.
Defendants' Ex. A.
Complaint ¶ 4.
The defendants raise two special defenses. First, the notice to quit is defective since the plaintiffs do not own the premises. Secondly, the defendants have a right to possess the subject portion of the property due to adverse possession. The defendants also counterclaim alleging ownership of the property in question.
RELEVANT LAW Adverse Possession
In a claim for title by adverse possession, the burden of proof is on the claimant. 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, notorious, 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. Adverse possession is a question of fact. A finding of adverse possession "is not to be made out by inference, but by clear and positive proof." Clear and positive 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. In other words, the probability that the facts are true must be substantially greater than the probability that the facts are false. Counterclaims for adverse possession are allowed in summary process eviction proceedings.
Roche v. Town of Fairfield, 186 Conn. 490, 498 (1982).
Hoffman Fuel Co. of Danbury v. Elliot et al., 68 Conn. App. 272, 277 (Conn.App. 2002); 1525 Highland Associates, LLC v. Fohl, 62 Conn. App. 612, 622-23 (Conn.App. 2001); Whitney v. Turmel, 180 Conn. 147, 148 (1980); Ruick v. Twarkins, 171 Conn. 149, 155 (1976); CT Page 12442Arcari v. Dellaripa, 164 Conn. 532, 536 (1973).
Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 43 (1989).
Top of the Town, LLC et al. v. Somers Sportsmen's Association, Inc., 69 Conn. App. 839, 844 (Conn.App. 2002).
Id.
Id.
See Top of the Town, 69 Conn. App. at 842.
The Elements of Adverse Possession
i.) Continuous Possession for Fifteen Years
In our state, the claimant must demonstrate continuous and uninterrupted possession of the property in dispute for at least fifteen years. Connecticut General Statutes Section 52-575(a) provides in relevant part:
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; and no such entry shall be sufficient, unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention of the person giving the notice to dispute the right of possession of the person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right . . .
Matejek v. Rifkin, 1998 WL 38206 at *1 (Conn.Super., Jan 22, 1998).
Continuous possession is interrupted when an adverse possessor acts in a way that acknowledges the superiority of the real owner's title. In determining whether possession is continuous, "the location and condition of the land must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions. In Roche v. Town of Fairfield, our Supreme Court held that the adverse use of a seasonal beach house during the summer constituted a continuous use. ii.) Open and Notorious Possession
Allen v. Johnson, 2002 WL 493074 at *2 (Conn.Super., March 12, 2002).
Roche, 186 Conn. at 501.
Id.
To be open, a use must be without attempted concealment. The use must be so open, visible, and apparent that it gives the owner of the servient tenement knowledge and full opportunity to assert his rights. However, actual knowledge of the use by the defendants is not required. In Hoffman Fuel Co. of Danbury v. Elliot et al., the Appellate Court of Connecticut held that a survey performed at the request of the claimant, coupled with the paving, repairing, plowing and painting of the disputed area, constituted an open and visible possession. The court concluded that such acts by the plaintiff were sufficient to give the defendants knowledge and full opportunity to assert their possessory rights. iii) Actual and Exclusive Possession
Hoffman, 68 Conn. App. at 277.
Id.
Id.
Hoffman, 68 Conn. App. at 278.
Id.
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. Rather, the possession need only be the type of possession that would characterize an owner's use. If the adverse user merely shares the dominion over the property with others, the use is not exclusive. In Roche, the plaintiffs maintained an exclusive use of a beach house even though the defendant used the beach area. The defendant's knowledge or notice of the adverse claim was not altered and the plaintiff's use did not amount to an acknowledgement of title by the defendant. iv) Claim of Right
Roche, 186 Conn. at 502.
Id.
Id.
Short Beach Cottage Grove Owners Improvement Ass'n v. Stratford, 154 Conn. 194, 199 (1996).
Id.
Id.
A use made under a claim of right is a use made without recognition of the rights of the owner of the servient tenement. The use must occur without license or permission and must be unaccompanied by a recognition of the right of the owner of the servient tenement to stop such use. If a plaintiff recognizes the defendant's ownership of the land, in words or by conduct, the plaintiff cannot succeed in a claim of adverse possession.
Hoffman, 68 Conn. App. at 279.
Id.
Top of the Town, 69 Conn. App. at 843.
DISCUSSION
The Court finds that the defendants have failed to prove by the preponderance of the evidence their claim of adverse possession on the parcel of the property in dispute. The only continuous use of the property in dispute that was proven by the defendants was the twenty-six (26) feet by forty-two (42) feet garden and the path leading to the garden from the defendants' property. The Court finds the garden existed on the property in dispute for over fifteen years. Although the garden was not maintained throughout the entire year, the seasonal use by the defendants is sufficient to support a finding of continuous use. With respect to the other uses of the property in dispute by the defendants, the Court finds that the defendants failed to prove that those uses continued for a period of fifteen years or more.
Defs' Exhibit Q.
See Roche, 186 Conn. at 501.
By its very nature, a claim of adverse possession is hostile to the claims of other persons. It cannot be hidden but must be open and notorious in order to put other persons on notice of the claimant's claim of the real estate. Here, the defendants never marked the boundary of the property in dispute that they now claim through adverse possession. The defendants did not notify anyone of their ownership of the property in dispute. There is no land record notice or claims that supports their claimed ownership of the property in dispute. The defendants did not notify the assessor and never paid taxes to the town of East Hartford on the disputed property. These factors tend to disprove the defendants' contentions that the uses of the property in question by the defendants were open and notorious.
Blacks's Law Dictionary, Fifth Ed.
The plaintiffs called the prior owner to testify as to whether the prior owner had actual notice of the claimant's possession. The plaintiffs called Martin Carangelo, who testified that he had no knowledge of the defendants' claim during the time he was the owner of the property. Further, he testified that the disputed property was not visible from the house where he resided and where the plaintiffs now reside. The property purchased by the plaintiffs is a large tract of land: 11.38 acres compared the defendants .50 acre parcel.
The garden area was conspicuous and visible to the ordinary passerby. The evidence established that, at times, there was a fence surrounding the garden. The fence was at times, a picket fence and at other times, a wire fence. The fence around the garden area could be considered by the Court as evidence of a claim of adverse possession, but also it could be considered as a means to prevent animals and children from destroying the garden. The Court finds based on the evidence, that the purpose of the fence was for the protection of the crops in the garden.
Defendant's exhibit M shows a tree line planted by the defendants at the boundary of their deeded property line. By establishing a tree line on their boundary, the defendants defined the extent of their property. The tree line demonstrated to the entire world that the garden and fort were not located within the defendants' property. Because adverse possession requires that a claim is "open and notorious", it would not be obvious to the owners, had they investigated that the defendants were trespassing on their property. A falling tree in the middle of the forest heard and seen by no one does not qualify as "open and notorious."
The defendants did not have exclusive possession of the entire parcel of the property in dispute. The defendants admitted that other persons traversed the property in dispute via a dirt path. The defendants never fenced the parcel of land that they claim through adverse possession. By allowing others to share in the use of the property in dispute, the defendants' use was not exclusive for the entire parcel of the property in dispute.
In a recent opinion, the Connecticut Appellate Court restated the proof required in an adverse possession claim:
"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. . . . The burden of proof is on the party claiming adverse possession. . . ."
Laurie J. Allen v. Richard E. Johnson et al. (Conn. Appellate Session; AC 22901) Conn. Law Journal Sept. 30, 2003.
As a result of the Court findings, the defendants' counterclaim of adverse possession of the property in dispute must fail, as the defendants do not meet this burden enunciated recently by the Connecticut Appellate Court.
CONCLUSION
The Court finds that there is insufficient evidence to conclude that the defendants' use of the property in dispute satisfies the elements of adverse possession. Therefore the special defenses and counterclaim must fail. Accordingly, judgment is entered in favor of the plaintiffs.