Opinion
No. CV 08-5019782-S
February 14, 2011
MEMORANDUM 0F DECISION
This quiet title action involves two adjoining lots, two buildings and a structure that has been built between the two buildings, hereinafter referred to as an addition. The plaintiff, Henry A. Deming, is the record owner of a parcel known as 5 Walnut Street in Manchester, Connecticut, which has 80 feet of frontage on Walnut Street and lies to the east of the defendant's property. The plaintiff took title in 1967. Plaintiff's Exhibit 2. The plaintiff's property will be referred to as the easterly parcel. The defendant, Mandi Dang, is the record owner of premises known as 7-9 Walnut Street, which has 34.73 feet of frontage on Walnut Street. She acquired her title in 1990. Defendant's Exhibit A. These premises will be referred to as the westerly parcel. There is a multi-story building located on each parcel. The court conducted a view of the exterior and interior of both buildings. The original building on the westerly parcel, the defendant's property, was constructed within 3 feet of the easterly line of said parcel. The building on the easterly parcel, the plaintiff's property, was also constructed within 3 feet of the westerly boundary of said parcel. At one time there existed an open space between the buildings that was approximately 5 feet wide.
At some time prior to 1963, a one-story addition was built between the two buildings that effectively connected the two buildings. This date is inferred from the language contained in a deed to a predecessor in title to the westerly parcel, dated May 23, 1963, and recorded in volume 388, page 664 of the Manchester land records. Plaintiff's Exhibit 10. This deed contains the following language: "Said premises are conveyed together with any rights the Grantor has or may have in and to a party wall in the building adjacent to the east of the above described premises." The term "party wall" does not fully describe the situation created by the addition, but one can reasonably infer that it refers to the fact that the easterly wall of the addition was built next to the westerly wall of the plaintiff's building.
From a view of the premises and the testimony of the parties, the court finds that the addition between the two buildings was built to expand the first floor area of the defendant's building that is located on the westerly parcel. It is apparent that the addition was built after the westerly building was built. The foundations for the addition and the westerly building are constructed from different materials. The first floor of the defendant's building was utilized as a restaurant/bar, and it is obvious that the area created by the addition was used for a bar and service area behind the bar. Lolly columns that supported the original easterly wall of the defendant's building are incorporated into the bar structure. The court finds that the addition is part of the defendant's building and that it encroaches over the common property line. The addition has not been utilized by the plaintiff as an appurtenance to his property. A view of the interior of the first floor of the plaintiff's building does not indicate that the bearing properties of building's westerly wall were altered by the construction of the addition. The roof of the addition, and presumably the easterly wall of the addition, abut onto the plaintiff's building.
The plaintiff submitted a survey map of the defendant's property entitled "Property of Hien Hai Hoac, 7 Walnut St., Manchester, CT, Lucek Engineering Assoc, Inc. Scale 1"=20,' Date 6-1-88"; Plaintiff's Exhibit 5; which is recorded in volume M25, page 104 of the Manchester land records. This map shows the common boundary line between the subject properties and shows the portion of the addition that is on the plaintiff's property. The easterly wall line of the addition, however, is not shown.
From Plaintiffs Exhibit 6, which is an unrecorded map entitled "Property of Henry Deming et ux, No 1 to 5 1/2 Walnut Street — Manchester, Conn., Scale 1"=10' October 20, 1967, Hayden L. Griswold C.E.," the court finds that a portion of the addition that is approximately 30 feet long and 2.5 feet wide encroaches upon the property of the plaintiff. The plaintiff has brought this action to quiet his title and the defendant has filed a special defense claiming that she has adversely possessed a portion of the plaintiff's property.
Law
Quiet title actions are authorized by General Statutes § 47-31. The statute provides that: "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." General Statutes § 47-31(f).
"[T]he relief afforded by the action to quiet title is a full determination of the rights of the parties in the land. Lake Garda Improvement Ass'n. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967)." DeVita v. Esposito, 13 Conn.App. 101, 104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988).
"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 . . . 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 the adverse possession of the other." (Citations omitted.) Clark v. Drska, 1 Conn.App. 481, 488-89, 473 A.2d 325 (1984). "In order to establish adverse possession, the claimant must oust an owner of possession and keep such owner out uninterruptedly for fifteen years by an open, visible, and exclusive possession under a claim of right with intent to use the property as his own and without the consent of the owner. (Internal quotation marks omitted.) Woycik v. Woycik, 13 Conn.App. 518, 520, 537 A.2d 541 (1988).
"The rule that an adverse possession claim requires a higher burden of persuasion than is required in the ordinary civil case . . . does not require that the proof establishing the claim be based entirely on direct evidence, as opposed to circumstantial evidence and the logical and reasonable inferences to be drawn therefrom. The law does not impose such a mental straight jacket on the trier of fact in an adverse possession case." (Citation omitted.) Woycik v. Woycik, supra, 13 Conn.App. 523-24.
As required by Clark v. Drska, the court determines that the plaintiff is the record title owner of the land located easterly of the common boundary of the parties, as it is depicted on the aforementioned surveys. The land that is owned of record by the plaintiff includes that portion of the land upon which the addition is built that lies easterly of the common boundary line. The court must next determine whether the defendant has established adverse possession of the portion of the plaintiff's land on which the addition is located.
After the plaintiff took title to his property he caused a notice, dated November 25, 1968, to be recorded in volume 443, page 481 of the Manchester land records on December 2, 1968, and served upon the defendant's predecessors in title. Plaintiff's Exhibit 3. The notice essentially stated that the plaintiff intended to dispute and prevent the defendant's predecessors in title from acquiring any claim for right of way or other easements on the plaintiff's property. The notice establishes that, in 1968, the plaintiff was aware of the fact that some or all of the addition was on his land. This notice will be discussed further below.
The construction of the addition, which enlarged the defendant's building upon the land of the plaintiff's predecessor in title, effectively and unequivocally ousted the predecessor of possession. This ouster, which occurred prior to 1963, was in effect when the plaintiff took title in 1967 and has continued to the present. The possession of the plaintiff's land by the owners of the westerly parcel, by way of the addition, was certainly actual, visible, uninterrupted and exclusive for a period in excess of fifteen years. The defendant has owned her property since 1990, however, it is clear from the evidence that the addition to the defendant's building has been in existence for more than fifteen years.
"It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons . . . [T]he possession [however] must be connected and continuous." (Citations omitted; internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 650-51, 905 A.2d 1256 (2006).
This case is similar to Woycik v. Woycik, supra, 13 Conn.App. 518, in which the plaintiffs established adverse possession to an area of land occupied by a storage shed they had erected on the defendants' land. From these facts, and reasonable inferences made from the facts, the court finds by clear and positive proof that the defendant has acquired title to that portion of the plaintiff's land upon which the addition is built. The land acquired by adverse possession is located east of the common boundary of the parties.
As noted earlier, the plaintiff gave a notice to the defendant's predecessor in title. That notice stated, in relevant part: "You are notified that Henry A. Deming, Jr. and Mary B. Deming . . . intend to dispute and to prevent you from acquiring any claims for right of way or other easements on or through the property of said Henry A. Deming, Jr. and Mary B. Deming located in the Town of Manchester . . . Said claimed right-of-way or easements are on or across a lot of land situated in the Town of Manchester, bounded and described as follows: [description of the plaintiff's property]." Plaintiff's Exhibit 3.
There is no statutory reference contained in the notice. It is possible that the notice was an attempt by the plaintiff to give notice pursuant to General Statutes § 47-38, which allows a notice in writing to be deemed an interruption of use to prevent the acquiring of a right-of-way. The notice is of no effect here since the defendant does not claim a right of way or easement, but instead claims adverse possession. In any event, mere notice is not sufficient to interrupt continuous adverse possession.
In Woycik, the defendants' attorney wrote a letter demanding removal of the shed and claimed that this demand interrupted the plaintiffs' adverse possession. The court did not agree and stated: "In order to interrupt continued adverse possession, the record owner must assert his claim to the land, perform some act that would reinstate him in possession, before he can regain what he has lost . . . A demand letter, however, is not an act which would reinstate [the defendants] in possession. Merely apprising the plaintiffs of the defendants' claim to the disputed area does not disturb the plaintiffs' possession, because there has been no `entry' as required by [General Statutes § 52-575] . . . and because the plaintiffs could have maintained no action on account of it." (Citations omitted; emphasis in original; internal quotation marks omitted.) Woycik v. Woycik, supra, 13 Conn.App. 525-26.
In the present case, the plaintiff did not present evidence that he engaged in any act or entry that reinstated him into possession at any time during the thirty-four years he has owned his property.
In the second count, the plaintiff alleges trespass by encroachment. Since the defendant has acquired title to the land occupied by the addition, the plaintiff cannot prevail on this count.
The court enters judgment quieting and settling title to the land occupied by the addition that is located east of the common boundary of the parties, in the defendant. If either party desires a judgment file that has a more detailed description of the land involved here, that party should submit an appropriate survey to the court within ninety days. This invitation will not stay the appeal period of this decision. Neither party is awarded costs.