Opinion
NNHCV155037703S
09-26-2019
Marlena CORTES-PRETE, Trustee v. Anna GHIROLI et al.
UNPUBLISHED OPINION
OPINION
SYBIL V. RICHARDS, JUDGE
Despite filing a twelve-count complaint that contains various allegations against multiple defendants, the gravamen of this action filed by the plaintiff is essentially a quiet title action at its most fundamental level. Based upon the relevant and credible evidence presented at the bench trial, including the court’s observation of the credibility and demeanor of the witnesses, the court begins with an overview of its factual findings and may interject such other facts as it deems appropriate or necessary.
I. Facts
A. Procedural History
The plaintiff, Marlena Cortes-Prete, is the Trustee of the John F. Cortes and Gloria J. Cortes Irrevocable Trust dated July 10, 2009 (Trust/plaintiff). In the complaint, the plaintiff alleges, inter alia, that the Trust is the owner of certain real property located in North Branford, Connecticut known as 681 and 681B Totoket Road (Trust property), bounded on the north by a strip of land designated as a 50 feet right of way (ROW), which it received by deed a quit claim that contains language along with the right to use the ROW "for all purposes for which a public highway may be used." (Emphasis added.)
The plaintiff’s first count is a quiet title action against multiple defendants who may have an interest in this matter. However, in this case, the court’s determination will focus primarily on two central, opposing parties with the first being the defendants, Anna Ghiroli and her son Gregory Ghiroli (Anna Ghiroli/Gregory Ghiroli/Ghiroli(s)). Anna Ghiroli is the owner of several pieces of real property located in North Branford, Connecticut known as 685, 687 and 689 Totoket Road (Anna Ghiroli property), which is bounded on the south by the ROW. The Anna Ghiroli property deed also contains the identical, above mentioned ROW wording. The plaintiff further alleges in count one that the Ghirolis refuse to recognize the Trust’s ability to use the ROW and have exercised certain superior rights to the exclusion of the plaintiff. In response, Anna Ghiroli filed an amended answer and special defenses in which she denied the plaintiff’s allegations, inter alia, and asserted three special defenses: Title in Oneself, Truth and the Marketable Record Title Act (Act).
Pursuant to General Statutes § 47-33b et seq.
The second set of main, opposing parties comprise of the defendants Leah Davenport and Scott Davenport (Davenports), who are the record owners of the property known as 32 Augur Road, North Branford, Connecticut (Davenport property). As a visual point of reference, Totoket Road and Augur Road run perpendicular to each other with the Trust’s property and Anna Ghiroli’s property at issue abutting one another and the Davenport property being situated across the street to the southern portion of the Anna Ghiroli property. Like the other quit claim deeds, the same ROW provision is included in the Davenport property’s quit claim deed. The Davenports filed a cross complaint against Anna Ghiroli to quiet title to any interest that Anna Ghiroli may claim to have in the Davenport property and to have the court declare that the Act extinguished any interest Anna Ghiroli may have in the Davenport property. Anna Ghiroli replied by filing an answer and a special defense in which she denied that the Davenport property’s ROW is 50 feet wide and asserted that the Act extinguished any ROW the Davenports may claim to have over the southern portion of her property.
With respect to the remaining counts and subsequent claims filed by the parties, the court will address each of the parties’ various claims, motions and defenses separately later in this decision as much of the emphasis of the court’s initial determination in resolving the parties’ respective quiet title claims will be focused on the issue of the width of the ROW as claimed by some of the central parties.
Specifically, the court is tasked with settling this property dispute regarding, in broad terms, the southern boundary line of the Anna Ghiroli property and, in particular, resolving the question of whether a driveway and utility poles at issue are located within the legal boundaries of the Anna Ghiroli property or within the ROW as shown on a certain 1961 subdivision map, which the plaintiff claims a legal right to access.
The case was tried to the court on four, non-consecutive days, January 25, 2018, February 6, 2018, March 14, 2018 and September 7, 2018. During the trial, the court heard testimony and admitted evidence. At the conclusion of the trial, the Ghirolis filed a motion for a directed verdict pursuant to Practice Book § 16-37 as to counts two through twelve on the grounds that the Trust failed to plead or introduce any proof of elements essential to the maintenance of such claims under Connecticut law. In response, the Trust filed an objection on the grounds that the motion was procedurally improper and that the plaintiff satisfied its burden of proof in connection with each count. The court reserved its ruling on the motion pending this decision. The court ordered the parties to submit briefs, which briefs were reviewed and considered by the court.
The court notes that the court did not consider the briefs as evidence.
B. Historical Facts
On June 18, 1961, various members of the Calabrese family (including John Calabrese and Ann Ghiroli) collectively conveyed to Vera Gagliardi, via a warranty deed, multiple contiguous parcels of land (Calabrese property) in North Branford, Connecticut (Calabrese subdivision), along with a 50-feet ROW that is designated as the "Right of Way of James Calabrese et al." On the very same day, Vera Gagliardi conveyed multiple parcels in the Calabrese subdivision, via a quit claim deed, to the instant parties for an ownership interest in their respective lots.
The lots conveyed were in the following order on the same day: #1, #2, #3 and #12, #4, #5, #6, #7 and #9, #8, #10 and #11.
Yet, these seemingly simple real estate transactions by Vera Gagliardi will turn out to be anything but due to some unusual attempt at wordsmithing in the ROW language used in each quit claim deed. Unlike the Calabrese property transactions, the quit claim deed conveyances transferred from Vera Gagliardi to the multiple grantees, including the plaintiff here, do not include any exact language that designates the ROW as a 50-feet ROW as alleged by the plaintiff in its complaint or as any dimension at all. It reads, in relevant part, as follows: "Together with a right of way for all purposes for which a public highway may be used over that ‘right of way James Calabrese et al’ as same is designated and appears on said map. All lines, dimensions and angles are to conform expressly with said map. "
Later, as it will be shown how this particular choice of wording by Vera Gagliardi in 1961 makes a crucial impact in the instant case, these series of conveyances will serve as the pivotal point for the court’s ultimate adjudication of the quiet title and other disputes pending before it.
Another Vera Gagliardi conveyance that occurred on June 18, 1961 was made to the defendant Anna Ghiroli via a quit claim deed, regarding lot #8 as shown on the Calabrese Subdivision Map. Many years later, on May 8, 1975, John Calabrese, by quit claim deed, conveyed his land, lot #2 (which John Calabrese acquired from Vera Gagliardi via a quit claim deed on June 18, 1961), to John and Gloria Cortes (John Cortes/Gloria Cortes/Cortes) together with all of the rights to the ROW. On May 10, 2013, the Cortes transferred the Trust property to the plaintiff. For the sake of clarity, the court will continue by separately describing the factual history of the Anna Ghiroli property and the Trust property to put the instant, complex controversy in its proper context beginning with the Anna Ghiroli property.
On June 7, 1961, the Planning Commission of North Branford approved a subdivision of the Calabrese property shown on a map entitled "Map showing subdivision James Calabrese Farm located on Totoket Road, Augur Road, Village Street, North Branford, Connecticut, surveyed and drawn by Phillip A. Marian, Reg. Prof. Engr. Conn. 1319 dated February 1961 scale one inch equal 50 feet," which map was recorded as Map 3-92 in the North Branford Land Records. This is also known as the Calabrese subdivision map.
C. The Properties
1. Anna Ghiroli Property
Although Anna Ghiroli acquired title to lot #8 in 1961, it was not until 1973 that she began the process of constructing a house on it. Before the commencement of construction, she sought subdivision approval for the creation of two lots by filing a map for the subdivision that is entitled "Ann’s Estate" and is dated May 29, 1973 (1973 Subdivision Map). One of the two subdivided parcels consists of the property known as 687 Totoket Road which has a house on it and 689 Totoket Road, which has frontage on said road. The other subdivided parcel comprises of the property known as 685 Totoket Road, which is not a building lot.
This created lot #9, which is another lot owned by Anna Ghiroli in the Calabrese subdivision.
In 1974-1975, Anna Ghiroli commenced constructing a house on the property known as 687 Totoket Road, in the middle portion of the land, and paid for the installation of utility poles in 1975 and the construction of a gravel driveway in 1975-1976. Prior to construction of the Anna Ghiroli driveway, there was a large drop from Totoket Road on to the property. In order to construct the driveway, Anna Ghiroli needed to put in fill to have a gradual descent so it would not be unsafe, and flatten it out in order to create a turn onto Totoket Road from a flat level area at the top of the hill. On both the north and south sides of the driveway, the land drops down in a bank. Gregory Ghiroli testified that when the driveway was built, its measurements were based upon the Calabrese subdivision map.
2. Trust Property
In 2012, a decision was made to construct a house on one of the Trust subdivision lots that abutted the ROW and John Cortes, one of the then owners of the Trust property, hired David L. Nafis of the engineering and land surveying firm of Nafis & Young (Nafis) to work on site construction and septic plans for the house. As a noteworthy aside, Nafis’ father, also a surveyor, previously worked with John Cortes in the 1990s, and informed him that the ROW was 50 feet wide. Nafis identified a problem with the ROW’s dimension. According to Nafis, the existing utility poles that the Trust wanted to access for the house’s electrical needs were on Anna Ghiroli’s property, not in the ROW, and the ROW referenced as 50 feet in the multiple 1961 Calabrese property deeds was 42 feet between the two properties instead of 50 feet after he tried to run the descriptions in nearly all of the subdivisions’ deeds and compare those with the measurements in the original 1961 Calabrese subdivision map using existing pins, monuments, stone walls and other standard criteria customarily considered by surveyors in accordance with the provision of § 200-300b(1) through 200-300(b)(20) of the Connecticut Regulations, minimum standards of Accuracy, Content and Certification for Surveys and Maps, which provides minimum standards for completing a survey. Nafis notified John Cortes and Maurizio Cianchetti, a representative of Wallingford Electric Division (Wallingford Electric), and explained that the utility poles that were identified to tap off service for the proposed new construction were located on Anna Ghiroli’s property. Nafis created an updated site plan depicting a proposed easement to be negotiated with Anna Ghiroli over the use of her property to access the utility poles as well as a map. He presented both the proposed easement and the updated site plan to John Cortes and gave a copy of the map to Cianchetti. Cortes fired Nafis and hired another surveyor, Thomas A. Stevens, to complete the site plan necessary for the construction of the house and to gain access to the utility poles. Stevens drafted a compilation survey map (Stevens Map) that was recorded on July 1, 2014 together with an easement from the Trust to the Town of Wallingford. With this assurance, Wallingford Electric proceeded to dig. Prior to digging the conduit, the site was inspected by Cianchetti. According to Cianchetti, there were pins on the south side of the ROW but not the north side. Upon receiving a cease and desist letter from Anna Ghiroli’s attorney, Wallingford Electric stopped digging and this litigation ensued.
Gloria Cortes was the other owner.
The Anna Ghiroli property and the Trust property.
a. Nafis’ Survey
David L. Nafis (Nafis) is a licensed, professional engineer and land surveyor who has been working with the engineering and land surveying film of Nafis & Young since 1987 in multiple capacities. He started in engineering, then obtained a license in surveying around 1997 and an engineering license sometime later in 2003. In 2012, a decision was made to construct a house on one of the Trust property lots, lot #2, and the plaintiff hired Nafis to work on the site construction and septic plans for the house. By that time he was hired by Cortes, Nafis had been involved with many properties in the Calabrese subdivision since the early 1990s including being hired by Anna and Gregory Ghiroli to mark the southern boundary of the Anna Ghiroli property regarding a dispute involving the driveway. The court finds him to be well-qualified and highly credible. In the process of preparing his survey and calculations of the boundaries lines applicable to this matter, Nafis reviewed the deeds for almost every property in the Calabrese subdivision; specifically the ones abutting the ROW and lots #1, 9, 7, 10, 6, 11 and 3 as well as the Hovey/Collett parcel. After reviewing the deeds and the maps, he also conducted field work of the entire subdivision and located pins and monuments on the Calabrese subdivision map as well as evidence of historical boundary lines including stone walls. In completing his survey, he had small issues with closure but was able to resolve them with the slight shifting of angles. More specifically, Nafis offered the following opinions, as set forth below, as to the boundaries of lot #8 and the ROW following said review:
See Exhibit 4 regarding the Hovey/Collett parcel, which is another property in the Calabrese subdivision.
1. Boundaries of Lot #8
Nafis’ expert testimony consisted of the following explanation of how he derived the boundaries lines for lot #8.
Northern Boundary Line- At the northeast corner of lot #8, Nafis found an iron pin and some old trace stone wall running along the northern boundary of the original Calabrese subdivision. In reaching his conclusions, he held an iron pin represented in the northwest corner, even though a monument is shown on the Calabrese subdivision map. Part of his opinion regarding the location of the northern boundary was based upon a stone wall that ran along the northerly boundary that was strong evidence of the property line. "... it pretty much is pretty strong evidence that the- that was the intent of both parties on each side is to mark it with a stone wall."
Eastern Boundary Line- He located an iron pin in the northeast corner along the stone wall and located a monument and in the southeast corner where lot #8 abuts the ROW. The distance between the northeast corner and the south east corner is 250 feet, which distance matches the original Calabrese subdivision map. The boundary line of 250 feet also matches the adjacent boundary line shown on two maps prepared for property directly to the west for Edward E. Collett ("Collett Maps") as well as a map of parcel B prepared by Adam Hoffman ("Hoffman Map"). The Collett Maps also show the remnant of the stone wall.
Southern Boundary Line- Nafis did not find any monumentation specifically establishing the southern boundary of lot #8 where it abuts Totoket Road. Therefore, in order to establish the direction and location of the southerly boundary line, he used the angle shown on the Calabrese subdivision map and drew the line from the monument located at the southeast corner. He ultimately concluded that the angle was 91° 26′ 59, ″ which is very close to the angle (90° 30′) on the Calabrese subdivision map. Nafis testified that if he held the angle shown (91° 30′), the angle would have been more open and the line would have run more southerly down to Totoket Road, further narrowing the ROW. The southern boundary of lot #8 is line shown on Exhibit J running from the monument on the eastern end (south point of the 250-foot line), to Totoket Road where it says "mon. not found." This line is also the northern line of the ROW.
Western Boundary Line- his opinion regarding the western boundary of lot #8 is a total of 161 feet, 149 feet to a slight angle, then 12 feet more to the southwest corner of lot #8. The western boundary line runs southerly from the iron pin found at the boundary line between lot #8 and lot #9 along Totoket Road.
In reaching the conclusion regarding the boundaries lines of the Anna Ghiroli property, the court finds that Nafis used monuments and other evidence that were located in the field to be able to establish the boundaries. Therefore, the court concludes that the boundaries lines of lot #8 are established on the Nafis Survey, Exhibit J, and the proper legal description for lot #8 is a follows:
All that piece or parcel of land shown as "Lot 8 142547.2 Sq. Feet 3.2724 Acres" on a map entitled "Ghiroli 687 Totoket Road, North Branford, Connecticut- Property Map Date: June 26, 2015 Scale 1″ = 30′" prepared by Nafis & Young Engineers, Inc. and being more particularly bounded and described as follows: Beginning at a point on the easterly side of Totoket Road at the interest of said parcel with Lot 9, which is the northwestern corner of the parcel and is marked by an iron pin; thence running western a distance of 555.0 feet to a point; thence turning and running 135.0 feet to a point marked by an iron pin along the southern boundary of property N/F Nancy Carol Scilipote; thence turning and running a distance of 228.72 feet to an iron pin; thence turning along an angle of 92° 26′ 59″ and running in a westerly direction 832.48 feet to the eastern side of Totoket Road; thence turning along an angle 67° 1′ 24″ and running in a northerly direction a distance of 12.0 feet; thence turning along an angle 174° 24′ 24″ and running in a northerly direction a distance of 12.0 feet; thence turning along an angle 174° 24′ 0″ and running in a northerly direction a distance of 149.0 feet to the point and place of beginning.
2. Boundaries of the Right of Way
Nafis also provided testimony that Exhibit J reflected the boundaries lines of the ROW, too. Exhibit J shows that the width of the ROW is to be 41.48 feet at the eastern end of the property and 39.02 feet at the western end of the property. Nafis testified as to his opinion of the southern boundary of the ROW and showed the monuments and pins along the southern boundary, some of which he actually personally set when working for Cortes. He reached the conclusion of the southern boundary of the ROW by finding monumentation that matched the original subdivision map.
With respect to the 149-foot call on the Anna Ghiroli deed, Nafis testified the deed refers to the map and the numbers need to be derived from the map. "It is clear by the angles on the map that twelve feet was left off." "Even if the twelve feet is included, there’s still not room for a 50-foot ROW at the back. It’s not parallel. There’s not enough room to the- on the- would be the easterly boundary of [Anna] Ghiroli."
Nafis testified if 149 feet were an accurate measurement on the western boundary of lot #8, the angle at the southeast corner would become much smaller than the angle shown on the Calabrese subdivision map. Additionally, if the 149-foot distance on the deed was accurate, the ROW would be 54 feet wide.
Nafis testified as to the reason he reached the opinion that there is less than 50 feet between the southern boundary of lot #8 and the northern boundary of the parcels on the south of the ROW. He testified that Vera Gagliardi, her heirs and assigns, currently still own the ROW, which is all that is remaining after she conveyed all of the specifically described lots. Nafis testified that the owner sold off different lots in the subdivision; after the lots were conveyed, Vera Gagliardi would have retained whatever was left over, "whether it’s ten feet, a hundred feet, three hundred feet." Nafis further testified that it was his expert opinion that "everybody within that subdivision got what they were entitled to by their deeds and Mr. Calabrese held what was left over." According to Nafis, Calabrese was the name on all the original maps and the ROW but, at the time of the conveyances, Vera Gagliardi owned everything. "Everything was quitclaimed to Vera and then she transferred everything out. She transferred everything except the ROW."
Nafis further testified that he reviewed Exhibit 24, the 1973 Subdivision Map but did not use it because of a number of inaccuracies. On the western boundary, the 1973 Subdivision Map only shows 144.35 Feet, which is even shorter than the 149 feet on the deed, and 161 feet on the map. He did not give much weight to Exhibit 24 when reaching his conclusions because it was such a variance from the Anna Ghiroli deed and the Calabrese subdivision map.
Therefore, the court concludes that the boundaries lines of the ROW are established on the Nafis’ Survey- Exhibit J and that the proper legal description for the ROW is as follows:
All that piece of parcel of land shown as "Right of Way James Calabrese Et. Al." on a map entitled "Ghiroli 687 Totoket Road, North Branford, Connecticut Property Map Date: June 26, 2015 Scale 1″ = 30′ prepared by Nafis & Young Engineers, Inc. and being more particularly bounded and described as follows: Beginning at a point on the easterly side of Totoket Road at a monument thence running in a northerly direction a distance of 42.42 feet to a point; thence turning and running in a easterly direction a distance of 832.48 feet to a monument found; thence turning and running southwesterly a distance of 43.34 feet to an iron pin; thence turning and running in a westerly direction to the point and place of beginning.
2. Thomas Arthur Stevens
Stevens is a consulting and land surveyor who has been with his current company since 1995. Prior to that, he was with a similar consulting business from 1980 to 1995. Between 1971 and 1980, he was surveying and engineering for the Town of North Haven.
a. Stevens’ Survey
Stevens was hired by the Cortes in 2014 to complete a site plan and survey of the ROW. Stevens never had any discussions with the plaintiff or Gloria Cortes. Stevens issued a map showing a 50-foot-wide easement northerly of the Cortes lots. John Cortes never told Stevens that there was a disagreement relating to the location of the utility poles. Stevens did not recall reviewing the Anna Ghiroli quit claim deed prior to the issuing his easement map. In completing his survey, Stevens testified that utility poles were located within the ROW. He completed the easement map without determining the southern boundary line of lot #8, the Anna Ghiroli property. Stevens testified that he did not consider the Collette maps into his easement map computations. Stevens testified that he disregarded the monument that was shown, below the 50-foot northern boundary of the ROW. Stevens testified that he "wasn’t looking to consider" the southern location of the Anna Ghiroli property. He was just completing an easement map, "it was not a complete survey of the entire subdivided parcel (sic)." He also testified that he is not prepared to testify about the northern portion of the ROW. Although the court finds that he is qualified, the court finds his testimony to be underwhelming. The court is not persuaded by his evidence.
See Exhibits E and F. The court, in this decision will mention this and other maps by name but will not endeavor to offer detailed descriptions of the same except as necessary.
Stevens never had any discussions with the plaintiff or Gloria Cortes. Stevens issued a map showing a 50-foot-wide easement northerly of the Cortes lots. John Cortes never told Stevens that there was a dispute whether the poles were in the ROW. Stevens had not reviewed the 1979 resubdivision map marked as Exhibit D. He testified that in Exhibit D, the poles appear to be to the north of the southern boundary of the Anna Ghiroli property. Stevens did not recall reviewing the Anna Ghiroli deed prior to the issuing his easement map.
In completing his survey, Stevens testified that utility poles were located within the ROW. Stevens was asked whether he completed a survey of the easement area. His response was, "In this case, we- We built the south line based upon the subdivision map ... and we offset that line 50 feet, per the file subdivision maps. We didn’t survey from the north downward, no." He testified that the survey was done "from the south to the north, and the 50 feet offset from that."
II. Analysis
The court begins by applying the general rules of law to the facts of this matter that pertain to boundaries lines where boundary lines are challenged as ambiguous. The well-established legal principles that are germane are as follows.
Where a party, pursuant, to General Statutes § 47-31 seeks to quiet title, the trial court should first determine in which party record title lies and then determine whether adverse possession has divested the record owner of title. See Clark v. Drska, 1 Conn.App. 481, 488, 473 A.2d 325 (1984).
"In determining a boundary line in a deed, the law is clear that the description in the deed, if clear and unambiguous, must be given effect. In such a case, there is no room for construction. The inquiry is not the intent of the parties but the intent which is expressed in the deed. Lake Garda Improvement Ass’n. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 [1968]; Faiola v. Faiola, 156 Conn. 12, 17, 238 A.2d 405 [1966]; Katsoff v. Lucertini, 141 Conn. 74, 77, 103 A.2d 812 [1954]; Patzloff v. Kasperovich, 116 Conn. 440, 441-42, 165 A. 349 [1933]; Botsford v. Wallace, 69 Conn. 263, 271, 37 A. 902 [1899]. Where the deed is ambiguous, however the intention of the parties is a decisive question of fact. Lake Garda Improvement Ass’n. v. Battistoni, supra; Staff v. Hawkins, 135 Conn. 316, 319, 64 A.2d 176 [1949]; Gioia v. Annunziata, 102 Conn. 52, 56, 127A 127 A. 921 921 [1925]; Raymond v. Nash, 57 Conn. 447, 452, 18 A. 714 [1889]." F.&A.K, Inc. v. Sleeper, 161 Conn. 505, 510, 289 A.2d 905 (1971); see Apostles of the Sacred Heart v. Curott, 187 Conn. 591, 595, 448 A.2d 157 (1982); Faiola v. Faiola, supra, at 18, 238 A.2d 405. In ascertaining the intention of the parties, it was proper for the trial to consider the surrounding circumstances. Staff v. Hawkins, supra; Connecticut Light & Power Co. v. Fleetwood, 124 Conn. 386, 389, 200 A. 334 (1938).
"Where the testimony of the witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court’s duty to accept that testimony or evidence which appears more credible." Stohlts v. Gilkinson, 87 Conn.App. 634, 640, 867 A.2d 860 (2005).
Where the calls for the boundaries are inconsistent, generally the order of review is (a) to natural objects or landmarks; (b) to artificial monuments (both natural and artificial monuments are referred to as fixed monuments); (c) to adjacent boundaries; and (d) courses and distances. 12 Am.Jur.2d Boundaries Section 61. As general rule, the boundary of an adjacent property may be considered a monument. Koennicke v. Maiorano, 43 Conn.App. 1, 682 A.2d 1046 (1996).
Upon examining the deeds in the record, in crediting the testimony of Nafis, the court finds that Vera Gagliardi is deemed to be the "root deed" for chain of title purposes and that she transferred ownership and possessory interests, "together with a ROW," via a quit claim deed in several lots located in the Calabrese subdivision to the parties to this proceeding that and/or who are the focal point of this decision. The plaintiff owns the Trust property, Anna Ghiroli owns the Anna Ghiroli property and the Davenports own the Davenport property. The court also finds that Vera Gagliardi’s conveyances do not contain any language regarding any dimension in relation to the ROW. Thus, in light of the specific findings and conclusions reached herein, the court finds that the root deed language used to transfer title from Vera Gagliardi to Anna Ghiroli is both unclear and ambiguous. In short, it is flawed because the words that refer to the ROW are pithy. This has given rise to subjectivity and misinterpretation instead of objectivity.
Because the court finds that the deed is both unclear and ambiguous, the court must next consider the intention of the parties and this is a question of fact. In doing so, the court can consider the surrounding circumstances. Therefore, having done so and having examined all of the full exhibits including the deeds, the court further finds that, on June 18, 1961, it is apparent that Vera Gagliardi intended to transfer ownership and possessory interests, via a quit claim deed, in several lots "together with a ROW" located in the Calabrese subdivision and, as Nafis testified, that Vera Gagliardi owns the rest of whatever that may be by way of dimension(s). The court has also determined that each party holds title to their own property. Next, the court considered whether any of the parties were divested of said ownership by virtue of adverse possession. From the credible and relevant evidence in the record, the court finds that no party proved that it, he, she or they, as the case may be, ousted any other party or parties. Notwithstanding the foregoing, the court underscores the point that no party pled adverse possession in this action. The answer to the question is then in the negative.
Now, due to conflicting testimony from witnesses relating to the location of the driveway and utility poles and whether the same were located on the Anna Ghiroli property or within the ROW, this became another question of fact for the court and the court exercised its discretion to rely upon expert testimony to reach a resolution. As mentioned previously, the court found the testimony of Nafis to be very credible and persuasive. The court credits Nafis’ evidence in helping the court determine the outcome of facts presented and accepts his testimony.
Generally, the court finds the evidence offered by Nafis is overwhelming as follows (and notes that these facts are set forth more particularly above). The court finds Nafis’ testimony that, after Vera Gagliardi conveyed all the lots in the subdivision, Vera Gagliardi retained whatever was left over to be helpful for all of the parties to this action. The court reiterates that our law provides, in essence, that monuments prevail over distances and that Nafis’s recitation of the steps he took in preparing a survey as an expert witness for Anna Ghiroli are convincing including those that satisfying the state regulations. The court credits Nafis’ testimony over that of Stevens’ testimony where their testimonies were in conflict and adopts the legal description for the boundaries lines of lot #8 and the ROW that are established on the Nafis’ survey marked as Exhibit J as stated earlier in this decision.
The court, thus, has performed its obligations under the applicable rules of law by accepting the testimony of the most credible witness in this action, and here that is Nafis’ testimony. Nafis conducted a field examination, found pins and monuments and stone walls from the previous Calabrese subdivision and reviewed nearly all of the deeds for the Calabrese subdivision. Nafis engaged in an overrarching and thorough exploration of nearly all of the Calabrese subdivision lots in order to reconcile the physical evidence discrepancies on site with the root deeds’ description along with the corresponding map in connection with the ROW language.
In summation, the court notes that this action is a perfect illustration of the havoc that may be caused by the unintended consequences that could stem from an exclusive reliance on a title deed to control and guide one’s understanding regarding the extent of boundaries lines of one’s ownership and possessory interests in real property and/or misunderstandings about the importance of when it becomes absolutely necessary to obtain an accurate survey.
III. Parties’ Claims
A. Quiet Title
In the present case, the issues involving quiet title stem from a dispute regarding the southern boundary line of the Anna Ghiroli property, lot #8. The defendants posit that once the southern boundary line is established, the dimensions of the ROW will follow. The defendants argues that the plaintiff failed to meet its burden of proof in proving that the ROW is 50 feet wide and that the utility poles are located within the ROW because the plaintiff’s expert witness surveyor did not meet the standards set forth in Connecticut Regulations § 20-300b(1) through § 200-300b(20).
The authority governing quiet title actions is General Statutes § 47-31. Section 47-31 provides in relevant part that: "(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 ... (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."
Further, "[a]n 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. When a party seeks to quiet title pursuant to § 47-31, the court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title ... The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of adverse possession of the other ... Under § 47-31, the claim for relief calls "for a full determination of the rights of the parties in the land. To prevail, the plaintiff must do so on the strength of her own title, not on the weakness of the defendants’; and by the preponderance of the evidence." (Internal quotation marks omitted.) Har v. Boreiko, 118 Conn.App. 787, 794-95, 986 A.2d 1072 (2010).
Additionally, "[i]n determining a boundary line in a deed, the law is clear that the description in the deed, if clear and unambiguous, must be given effect. In such a case, there is no room for construction. The inquiry is not the intent of the parties but the intent which is expressed in the deed ... Where the deed is ambiguous, however, the intention of the parties is a decisive question of fact ... In ascertaining the intention of the parties, it was proper for the trial court to consider the surrounding circumstances." Id., 795-96.
Last, "[w]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely upon the opinions of experts to resolve the problem and it is the court’s duty to accept that testimony or evidence which appears more credible. In determining credibility of the experts, the court as the trier of fact could believe all, some or none of the testimony." Id., 796; see also Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 (1971) (in cases where deed and map referenced therein contain ambiguities, trial court must look to intentions of parties to determine where boundary line lies).
In determining a boundary line in a deed, the law is clear that the description in the deed, if clear and unambiguous, must be given effect. In such a case, there is no room for construction. The inquiry is not the intent of the parties but the intent which is expressed in the deed. Where the deed is ambiguous, however, the intention of the parties is a decisive question of fact. Where the testimony of the witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court’s duty to accept that testimony or evidence which appears more credible. Where the calls for the boundaries are inconsistent, generally the order of review is (a) to natural objects or landmarks; (b) to artificial monuments (both natural and artificial monuments are referred to as fixed monuments); (c) to adjacent boundaries; and (d) courses and distances. As general rule, the boundary of an adjacent property may be considered a monument." (Citations omitted; internal quotations omitted.) Har v. Boreiko, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-4005573-S (February 11, 2008, Robinson, J.).
The seminal boundary line case of Koenicke v. Maiorano, 43 Conn.App. (1996), provides additional legal framework regarding the use of monuments in boundary line disputes. "It is well settled as a rule of the construction of deeds that [w]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances ... The land of an adjoining owner whose boundaries can be fixed by known monuments is also considered to be a monument to establish a boundary." Id. at 10. Monuments used in boundary cases include anything set by man, such as concrete monuments, iron pins and stone walls. "A ‘monument, ’ when used in describing land, has been defined as "any physical object on the ground which helps to establish the location of the line called for and the term ‘monument, ’ when used with reference to boundaries, indicates a permanent object which may be either a natural or artificial one ... Natural monuments include such natural objects as mountains, streams, rivers, creeks, springs, trees ... Artificial objects and monuments consist of marked lines, stakes, rocks, fences, buildings and similar matters marked or placed on the ground by the hand of man. It has been said that ‘a stone wall is strong evidence of a boundary line.’ One court has said that a monument, when used in describing land, is ‘any physical object on the ground which helps to establish the location of the line called for, ’ whether it be natural or artificial." Id. at 11-12.
During the examination and further examination of Nafis and in the plaintiff’s brief and the brief submitted by the defendants Ghirolis, these two parties attempted to adduce testimony from Nafis to support or defend their respective postures relating to a legal theory that is discussed in C. Brown, W. Robillard & D. Wilson, Boundary Control and Legal Principles (7th Ed. 2014) (Brown’s) in connection with the topic of the difference between a retracement versus a survey. In its brief, the plaintiff contends that Nafis performed what Brown’s describes as a retracement by essentially replacing lost corners as Nafis did here to close the gap in the ROW. Brown’s definition of the word "[r]etracement" provides:
Brown’s definition of the word "[s]urvey provides, in relevant part, as follows: "A term that has several multiple and possible ambiguous meanings ... A product. A survey map, plat, or plan or "my survey." The physical evidence of the verb "to survey." ... To conduct a survey. A process of conducting measures to create evidence or to gather evidence on the ground from which your survey ... will be created. One of three surveys. Original Survey: An original survey does not ascertain boundaries but creates them ... Independent resurvey: A second place after conducting a retracement in which none of the original evidence is used to locate lost corners and lines, the original evidence is discarded, and new lines and corners are created."
"Retracement is the first-phase or step in conducting a resurvey. It is the office and field process conducted to find evidence of any original survey that still remains on the ground. It includes recovering, identifying, and evaluating the remains of the original evidence. It does not include replacing lost corners. It is a process of recovering, not creating new evidence."
Thus, the plaintiff argues that Brown’s suggests that Nafis’ retracement work was not in conformity with Brown’s as by doing so Nafis’ retracing would disrupt existing boundaries lines of abutting properties thereby causing undue chaos of said surrounding property owners. The Ghirolis posits in their brief that Nafis in essence created a map as opposed to a retracement within the definition supplied in Brown’s. The court is not persuaded by the plaintiff’s posture.
Irrespective of the subtleties between Brown’s definition of the words "retracement" and "survey," the court declines to engage in judicial activism by adopting Brown’s concepts as advanced by the Trust when there are solid legal precedents, clear case law and statutory authority in this state from which the court may be guided to deal with the various claims that the parties have either raised in their pleadings or asserted as a special defense. In short order, the well-settled law in this state, as previously stated above, is that the trial court must look to the intention of the parties to determine where the boundary line lies where the deed is both unclear and ambiguous and that is what happened in this action with regard to the Anna Ghiroli property, lot #8, including the ROW.
Based on the grounds discussed herein, the court denies all claims relating to quiet title, including requests for relief thereunder, except for that portion of said claim that was granted by the court in connection with the description of Anna Ghiroli’s property, known as lot #8, and the ROW as discussed by the court in this decision.
B. Junior/Senior Rights
In the present case, the plaintiff argues that the lots were conveyed individually in separate successive documents and raises the concept of junior and senior rights that is mentioned in Brown’s above. Specifically, the plaintiff argues that the transfer of the lot owned by the Trust, along with the ROW, was conveyed well prior to that transferred to the defendants. Therefore, the plaintiff argues that the conveyance to John Calabrese is senior to that of Anna Ghiroli and that even if the court is convinced that there might be an overlap of the defendants’ property over the ROW, the defendants lose that argument as their conveyance is junior to that of those along the southern boundary of the ROW.
In response, the defendants argue that the parcels of land in the Calabrese subdivision were simultaneously created and therefore, the principal of junior/senior rights does not apply as all of the lots have equal standing. The court agrees.
"The principle of junior and senior rights is described as follows: when a portion of a tract of land is sold, two parcels are created, a new parcel and the remainder of the parent parcel. Because the new parcel must receive all of the land described, it is called the senior deed, and the remainder, at the time of conveyance, becomes the junior deed. As between private parties, a junior grant, in conflict with a senior grant, yields to the senior grant." Goodrich v. Diodato, 48 Conn.App. 436, 441, 710 A.2d 818.
Further, "[the above] principle appears to be nothing more than a restatement of the well-established rule that a party cannot convey that which he no longer possesses. In cases where there are ambiguities about what was intended to be conveyed to the holder of the oldest deed, that rule cannot resolve the dispute. Instead, in cases where the deed and the map referenced therein contain ambiguities, the trial court must look to the intention of the parties to determine where the boundary line lies. The question of the parties’ intention as to the division line was one of fact for the trial court and we cannot disturb its finding if it is based on evidence of the surrounding circumstances and the situation of the property which legally supports the finding." (Emphasis added.) Id.
Another important area mentioned in both briefs is whether or not the conveyance of the applicable deeds was sequential or simultaneous. There appears to be little Connecticut authority dealing precisely with this issue. However, in general a sequential conveyance occurs is defined as "written deeds in which junior and senior rights exists between adjoining parcels because of a lapse of time between successive conveyance instruments." Brown’s Boundary Control and Legal Principals, 7th Edition, pp. 340-41. On the contrary, a simultaneous conveyance occurs when several parcels of land are created at the same moment in time, from the same source tract, such as lots in a subdivision ... all parcels have equal legal standing. They are all created at the moment of filing the subdivision map. Id.
Last, "Connecticut has always been a "recording" state in the field of land transaction. Notice to purchasers and grantees has been embodied in statutory law since this state was a crown colony." Marshall v. Soffer, Superior Court, judicial district of New Haven, Docket No. CV-97 0407663-S (December 10, 1998, DeMayo, J.T.R.), aff’d, 58 Conn.App. 737, 756 A.2d 284 (2000). General Statutes § 47-10 sets forth this policy and provides in relevant part that "[n]o conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies. When a conveyance is executed by a power of attorney, the power of attorney shall be recorded with the deed, unless it has already been recorded in the records of the town in which the land lies and reference to the power of attorney is made in the deed."
In the present case, the plaintiff argues that the lots in the Calabrese subdivision were conveyed individually in separate successive documents. Specifically, the plaintiff argues that the transfer of the lot owned by the plaintiff, along with the purported 50-foot ROW the plaintiff alleges it owns in its complaint, was conveyed well prior to the lots transferred to the defendants. The court is not convinced by the plaintiff’s assertions based on several grounds. First, the court restates the applicable law.
Our state has always been a "recording" state in the field of land transactions. Therefore, the court’s determination of the parties’ respective rights and interest do not revolve around the date on which the conveyances occurred in sequential order in relation to one another because this state is a recording state and the deeds were recorded. Thus, the argument concerning junior and senior rights has no merit in this case and the court declines to entertain it further in this decision.
IV. Fraudulent Misrepresentation
Counts two and three are claims for fraudulent misrepresentation against Gregory Ghiroli and Anna Ghiroli, respectively. In the present case, the plaintiff argues that defendants made false statements so as to induce the Wallingford Electric to stop its installation of electric service to the Trust property. The alleged fraudulent misrepresentation include the width of the ROW and that the utility poles were on Anna Ghiroli’s property, not the Trust property.
In response, the defendants argue that the plaintiff has failed to prove an essential element of a claim for fraudulent or negligent misrepresentation. Specifically, the defendants argue that the plaintiff to introduce any evidence showing that the statements made by the defendants were untrue, known by either defendant to be untrue or that the defendants should have known them to be untrue. The court agrees with the defendants’ position.
"The essential elements of an action in common law fraud, as we have repeatedly held, are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury ... Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance. In contrast to a negligent representation, [a] fraudulent representation ... is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it. This is so because fraudulent misrepresentation is an intentional tort." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC., 298 Conn. 124, 142, 2 A.3d 859 (2010). "In contrast to a negligent representation, [a] fraudulent representation ... is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it." (Internal quotation marks omitted.) Kramer v. Petisi, 285 Conn. 674, 684 n.9, 940 A.2d 800 (2008).
The plaintiff failed to sustain its burden of proof with respect to this count because the statements made by the defendants to Wallingford Electrics’ line workers and in the cease and desist letter were truthful. The evidence reflects that the driveway is on Anna Ghiroli’s property and the utility poles are within the ROW irrespective of its width. As discussed previously, the plaintiff has neither an ownership nor a possessory interest in the situs of said driveway or utility poles. The court denies both counts on this basis.
V. Negligent Misrepresentation
The Trust claims negligent misrepresentation as to Gregory Ghiroli and Anna Ghiroli in counts four and five, respectively.
In the present case, the plaintiff has argued that in the alternative to fraudulent misrepresentation, the defendants negligently misrepresented the width of the ROW and location of the utility poles.
In response, the defendants argue that the plaintiff has failed to prove an essential element of a claim for fraudulent or negligent misrepresentation. Specifically, the defendants argue that the plaintiff to introduce any evidence showing that the statements made by the defendants were untrue, known by either defendant to be untrue or that the defendants should have known them to be untrue. The court agrees.
"This court has long recognized liability for negligent misrepresentation ... The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment ... supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, supra, 298 Conn. 144. Additionally, "[t]he language of § 552 of the Restatement (Second) of Torts, which we adopted in D’Ulisse-Cupo, plainly does not limit the tort of negligent misrepresentation to those in the business of selling information." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 575-76, 657 A.2d 212 (1995). To the contrary, "§ 552 applies to anyone who supplies information in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest. Providing information in the course of one’s business is plainly more expansive than selling information as the purpose of one’s business." (Internal quotation marks omitted.) Id. Further, "[w]e have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, supra, 298 Conn. 144.
The court concludes that the Trust failed to sustain its burden of proof. However, the court reiterates that this action involves a good faith dispute on the part of the parties given the court’s findings and conclusions. The court denies both counts.
VI. Negligence
Count six is a negligence claim against Anna Ghiroli.
In the present case, the plaintiff argues that at the very least, the defendants are liable to the Trust for negligence. Specifically, the plaintiff argues that the defendants had a duty to allow the other property owners unfettered access and use of the ROW and breached that duty when they took affirmative action to prevent the Trust’s agent from accessing the electrical poles located on the ROW.
In response, the defendants argue that the plaintiff has failed to show the existence of a legal duty of care owed to it. Specifically, the defendants argue that the plaintiff’s claim of negligence can only succeed if it is correct in her assertion of the location of the ROW and that the defendants knew or should have known this fact. Further, the defendants argue that because there is a good faith dispute as to the location of the ROW, the plaintiff cannot prove that an ordinary person in the defendants’ positions would anticipate that harm of the general nature of that suffered was likely to result.
"The essential elements of a cause of action in negligence are well-established: duty; breach of that duty; causation; and actual injury ... Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ... Thus, [t]here can be no actionable negligence ... unless there exists a cognizable duty of care ... [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ..." Cannizzaro v. Marinyak, 312 Conn. 361, 366, 93 A.3d 584 (2014).
Further, "[a] simple conclusion that the harm to the plaintiff was foreseeable ... cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ... [D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ... While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree ... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results." (Citations omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 756, 792 A.2d 752 (2002).
None of the elements of a cause of action in negligence was proven by the plaintiff. No duty was owed by the defendants to the plaintiff to modify or warn the plaintiff that the utility poles were located on Anna Ghiroli’s property. Taking the rest of the requirements of a negligence action to its logical extension, the plaintiff also failed to prove there was a breach of any such duty, causation or damages. Consequently, this count fails.
VII. Slander of Title
Counts seven and eight are a slander of title action against Anna Ghiroli and Gregory Ghiroli, respectively.
In the present case, the plaintiff argues that the defendants slandered the title of the Trust to the area around the utility poles. Specifically, the plaintiff argues that the defendants’ statements made to utility line workers and statements in a letter stating that the poles are not within the ROW were false.
In response, the defendants argue that the plaintiff has failed to prove that the defendants’ statements were false and made with malice, and therefore, there can be no sustainable claim for slander of title.
"To establish a case of slander of title, a party must prove the uttering or publication of a false statement derogatory to the plaintiff’s title, with malice, causing special damages as a result of diminished value of the plaintiff’s property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." (Emphasis added; internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 644, 652, 76 A.3d 636 (2013).
Additionally, "[a]s there is little appellate case law regarding the actual malice element of a slander of title claim, we turn to the precedents of common-law slander to guide our analysis. Whether a defendant has knowledge of the falsity of a defamatory statement is a question within the province of the trier of fact ... The proper inquiry is whether a defendant believes, honestly and in good faith, in the truth of his statements and whether he has grounds for such belief ... Notably, however, a trial court is not required merely to accept a defendant’s self-serving assertion that he published a defamatory statement without knowing that it was false. Actual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth ... A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth ... Further, proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice ... although such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity." (Citations omitted; internal quotation marks omitted.) Id., 655-56.
According to the plaintiff, the defendants’ statements made to Wallingford Electrics line workers and in the cease and desist letter that the utility poles are not within the ROW were false. The plaintiff did not establish its burden of proof. Therefore, the court denies both counts.
VIII. Tortious Interference
Counts nine and eleven is a tortious inference with a beneficial relationship claim against Gregory Ghiroli and Anna Ghiroli, respectively.
In the present case, the plaintiff argues that the defendants tortiously interfered with the Trust’s beneficial relationship with Wallingford Electric. Specifically, the plaintiff argues that the defendants knew Wallingford Electric was at the property to install electric service for the benefit of the Trust, but nonetheless, intended to materially interfere with the process through fraudulent and negligent misstatements.
In response, the defendants argue that the plaintiff has failed to prove that beneficial relationship exists between itself and the Town of Wallingford because the plaintiff has failed to prove any legal right to the disputed property. Therefore, the defendants argue that the plaintiff has failed to establish the necessary relationship between itself and the town. Additionally, the defendants argue that the Town of Wallingford admitted that it had received documentation that indicated the poles were located on the defendants’ property and not the ROW. Finally, the defendants argue that the Town of Wallingford admitted, in a letter dated November 7, 2013, that "we need to verify that the other property owners abutting the right of way do not dispute its location."
"A claim for intentional interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant’s knowledge of that relationship; (3) the defendant’s intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the defendant’s tortious conduct." Rioux v. Barry, 283 Conn. 338, 351, 927 A.2d 304 (2007). Further, "not every act that disturbs a contract or business expectancy is actionable ... [A]n action for intentional interference with business relations ... requires the plaintiff to plead and prove at least some improper motive or improper means ... [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 502 n.24, 656 A.2d 1009 (1995).
The plaintiff’s tortious interference claim fails as a matter of law because the plaintiff did not meet its burden of proof by a fair preponderance of the evidence that it had a beneficial relationship between itself and Wallingford Electric in relation to the utility poles located within the ROW on Anna Ghirolis’ property. Therefore, this claim fails as a matter of law.
IX. Trespass
Count ten is a trespass claim against Anna Ghiroli.
In the present case, the defendants argue that that the court cannot find for the plaintiff on the trespass count because the court will either determine that the poles are on the defendants’ property or that the poles are within the ROW, which is available to use for the benefit of both the plaintiff and defendants.
"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. Further, [t]he 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." (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007).
Here, the plaintiff failed to meet its burden of proof to establish trespass by a fair preponderance of the evidence as the plaintiff lacked any ownership or possessory interest in the land on which the utility poles are located as a threshold matter. Thus, the plaintiff’s claim fails as a matter of law.
X. Civil Conspiracy
Count twelve is a civil conspiracy claim against the Ghirolis.
In the present case, the plaintiff argues that the defendants acted in concert, as well as separately, with the collective intent of preventing the trust from building upon its property. Specifically, the plaintiff argues that the defendants’ conduct, words, and actions about the actual width of the ROW, as well as the location of the poles within the ROW, were made in furtherance of a shared scheme to prevent development of the Trust property.
In response, the defendants argue that the plaintiff has not met its burden of proving that there was some criminal or unlawful act in denying the plaintiff the ability to access the poles until a judicial determination is reached. Specifically, the defendants argue that they had an opinion from a licensed land surveyor which indicated that the poles were on the defendant’s property.
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 635-36, 894 A.2d 240 (2006).
Additionally, there is "no independent claim of civil conspiracy. Rather, the action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself ... Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort. The essence of a civil conspiracy ... [is] two or more persons acting together to achieve a shared goal that results in injury to another." Id., 636-37.
"Thus, the purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor’s conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing. Implicit in this purpose, and in the principle that there must be an underlying tort for the viability of a civil conspiracy claim, is the notion that the coconspirator be liable for the damages flowing from the underlying tortious conduct to which the coconspirator agreed. This reasoning, however, does not extend so as to impose civil liability on a coconspirator for damage caused by the actual wrongdoer before the civil coconspirator even joined the conspiracy. By that time, the underlying tort had already been completed. The purpose of civil liability is to allocate the loss between persons who may be in some legal sense responsible for that loss. We can see no reason to extend that purpose to a defendant who could not have been in any sense responsible for a loss because it had not begun to participate in the civil conspiracy resulting in that loss until long after the loss was incurred." (Internal quotation marks omitted.) Id.
Based upon the credible and relevant evidence presented, the court finds that the plaintiff failed to sustain its burden of proving the essential elements of civil conspiracy. The record reflects that Nafis made John Cortes aware of the problem in 2012. Instead of exploring other potential options, such as opening up a dialogue with Anna Ghiroli to permit Wallingford Electric to tap the conduit off the utility poles located on her property or building a house elsewhere on lots Cortes owned in the same subdivision, Cortes opted to fire Nafis and engaged Stevens. Although he did not share his knowledge of Nafis’ opinion about the ROW’s width with Stevens, that fact, in and of itself, is insufficient to prove civil conspiracy. Simply put, there was no evidence of conspiracy. This count fails. The court denies count twelve.
XI. The Davenports’ Cross Complaint as to Anna Ghiroli
The Davenports filed a one count, cross claim seeking to quiet title to the Davenport property to determine their respective rights and to declare that Anna Ghiroli does not have any estate, interest in, or encumbrance upon the Davenport property pursuant to General Statutes § 47-31 in response to the filing of an answer and special defenses by Anna Ghiroli.
Section § 47-31 provides that the action may be brought by anyone claiming title to, or any interest in, the property, and that the complaint must set forth this title or interest and the manner in which the plaintiff acquired it. Gaul v. Baker, 105 Conn. 80, 84, 134 A. 250 (1926). One obvious purpose of the latter requirement is to make certain that a plaintiff has, within the purview of the allegations of his complaint, not a mere groundless claim but an actual interest in the property sufficient to justify his instituting an action concerning it and asking the court to adjudicate his rights and those of the parties defendant. Unless a plaintiff has such an interest, he obviously has no right to maintain an action under the statute for the adjudication of any claims concerning the property. Gager v. Carlson, 146 Conn. 288, 289, 150 A.2d 302; Ball v. Town of Branford, 142 Conn. 13, 17, 110 A.2d 459; Padula v. Padula, 138 Conn. 102, 110, 82 A.2d 362; Spelke v. Shaw, 114 Conn. 272, 282, 155 A. 715; 158 A. 809; Borden v. Westport, 112 Conn. 152, 168, 151 A. 512; Roberts v. Merwin, 80 Conn. 347, 350, 68 A. 377. A plaintiff’s proof of an interest necessary to enable him to maintain an action under the statute is technically distinct from his proof of the facts necessary to entitle him to an affirmative adjudication in his favor. It is for this reason that a defendant may, if he chooses, put in issue whether the plaintiff has, within the purview of the allegations of the complaint, title to, or an interest in, the property sufficient to enable him to maintain the action. Reaney v. Wall, 134 Conn. 663, 671, 60 A.2d 505; Foote v. Brown, supra. If the allegations of the complaint fail on their face to show in the plaintiff such a title to, or interest in, the property, their insufficiency may be attacked by demurrer. Gerard v. Beecher, 80 Conn. 363, 368, 68 A. 438, 15 L.R.A., N.S., 900; see Lloyd v. Weir, 116 Conn. 201, 204, 164 A. 386. If a defendant desires to controvert their truth, he may do so by denying them in his answer. Stevens v. Smoker, 84 Conn. 569, 573, 80 A. 788; cf. Robinson v. Meyer, 135 Conn. 691, 693, 68 A.2d 142.
"One cannot create a title in himself merely by proof of a set of deeds purporting to constitute a chain of title ending with conveyance to himself." Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960).
‘A mere paper chain of title does not establish ownership in one unless his possession or that of his predecessors in title is shown, though title satisfactorily established may draw with it possession in the absence of any evidence to the contrary. Foote v. Brown, 81 Conn. 218, 225, 70A. 699.’ Mentz v. Town of Greenwich, 118 Conn. 137, 143, 171 A. 10, 12.
"A plaintiff’s proof of an interest necessary to enable him to maintain an action under the statute (§ 47-31) is technically distinct from his proof of the facts necessary to entitle him to an affirmative adjudication in his favor." (Emphasis added.) Loewenberg v. Wallace, 147 Conn. 689, 693, 166 A.2d 150 (1960).
By applying the legal principles above to the instant facts, it is clear that the Davenports failed to satisfy their burden. Under ordinary circumstances perhaps, the Davenports may have been able to simply try to ask that the court admit evidence of the chain of their title going back in time to a range of 40 to 60 years if there was no controversy relating to the width of an alleged 50-foot ROW. But in this action, there is evidence to the contrary and this changed the requisite level of proof that would be sufficient to meet the Davenports’ evidentiary burden above that of a ‘mere paper chain’ as described in the Foote decision. The general rule of law set forth in the Loewenberg case further illustrates this point:
"[A] party can prevail, that is, can obtain an adjudication of title or an interest in himself, if at all, only on the strength of his own title or interest as distinguished from the weakness of the title or interest of his adversaries. This is true as to a plaintiff, both as to proof of an interest in the property sufficient to entitle him to maintain the action and as to proof of the facts necessary for him to obtain an affirmative adjudication of title or an interest in himself." Loewenberg v. Wallace, 147 Conn. 689, 698-99, 166 A.2d 150 (1960). (Citations omitted.) "That is also true as to a defendant, if he is to obtain an affirmative adjudication of any title or interest in himself." Id., at 699, 166 A.2d 150. (Citations omitted.)
Thus, in light of the fact that the court has reached the conclusion that the ROW in question is not 50 feet as claimed by the plaintiff, the Davenports’ sole reliance on their quit claim deed and nothing more, absent mounting a strong evidentiary case affirmatively before the court for purposes of adjudication of their interests, and only meeting the minimum filing requirements for filing a quiet title action under § 47-31, was woefully misplaced to their detriment. Thus, the court enters judgment against the Davenports and denies any and all requests for relief thereunder.
XII. Anna Ghiroli’s Special Defenses as to the Trust
The court will now turn its attention to the three special defenses that Anna Ghiroli raised in her amended answer and special defenses: Title in Oneself, Truth and the Marketable Record Title Act. Although the defendant Anna Ghiroli denied that the ROW was 50 feet as alleged by the plaintiff, the court concludes that she did not sustain her burden of proof in light of the confusion relating to the surrounding circumstances in connection with this good faith dispute as to her first two special defenses. This is made obvious by the court’s narrow grant of relief for her quiet title claim with respect to the Anna Ghiroli property and the ROW. Therefore, her first two special defenses fail. With respect to her third special defense, the court concludes that there is also insufficient evidence to demonstrate that any interest that the plaintiff may have in the Anna Ghiroli’s property and ROW has been extinguished under said act.
XIII. Anna Ghiroli’s Special Defense as to the Davenports
In her one-count answer and special defense, Anna Ghiroli generally admitted, denied and left the Davenports to their proof but specifically denied the Davenports’ allegations in their cross claim that the ROW is 50 feet wide. Anna Ghiroli also asserted that, pursuant to the Marketable Record Title Act under General Statutes § 47-33b, any ROW that the Davenports may claim over the southern portion of her property has been extinguished. Using the same analysis that the court applied in reaching its conclusion in section XI above regarding the Davenports cross complaint, the court finds that there was insufficient evidence to support Anna Ghiroli’s special defense asserting that any interest in the ROW over her property that the Davenports may have an interest in was extinguished under the Marketable Record Title Act. The court finds that the proof is simply lacking and the court declines to supply it by way of inference or otherwise as the court concludes that the underlying point of contention grew from a dimension that was incorrectly described in the conveyance deeds held by the parties in this action. Therefore, the court concludes that Anna Ghiroli failed to sustain her burden of proof.
XIV. Anna Ghiroli’s Motion for a Directed Verdict
As mentioned herein, the court reserved its ruling on Anna Ghiroli’s motion for a directed verdict pursuant to § 16-37 of the Practice Book, which applies to jury trials. However, procedurally, the correction section of the Practice Book that applies to bench trials is § 15-8, which provides, in relevant part, as follows:
"If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for a judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted ..." Notwithstanding the distinction between the two sections of the Practice Book, the court declines to exercise its discretion in light of its adjudication of the present matter. Thus, the motion is denied.
Conclusion
Based upon the foregoing reasons, the court denies judgment to all complaints and cross complaints, motions, special defenses and requests for relief, including requests for attorneys fees and costs, to all parties with the limited exception of that portion of Anna Ghiroli’s quiet title claim that relates to the establishment of boundaries lines for Anna Ghiroli’s property, lot #8, and the ROW that the court granted and addressed herein.