Opinion
No. CV 06 4005573 S
February 11, 2008
MEMORANDUM OF DECISION
Background
The plaintiff Wanda Har (hereinafter "Har") alleges in an Amended Complaint that she is the owner of certain parcel of land identified as 127 Melba Street, Milford, Connecticut. She alleges that she acquired her interest in the subject property by way of a Quitclaim Deed dated May 8, 2003 from Dean Har and Wanda I. Febus to Wanda Febus, which deed was recorded in volume 2727, page 241 of the City of Milford Land Records on May 15, 2003.
On December 30, 2005, the plaintiff served the defendant Karen Fitzmaurice (hereinafter "Fitzmaurice") with a writ summons, complaint and Lis Pendens.
On January 1, 2006, the plaintiff served the defendant Dorothy S. Borieko (hereinafter "Borieko") with a writ summons, complaint and Lis Pendens.
The plaintiff alleges that the defendant Dorothy Boreiko resides at and claims to own property located at 55 Pelham Street, Milford, Connecticut (hereinafter the "Borieko Parcel").
The rear of the Boreiko Parcel abuts the rear of the Har parcel.
The plaintiff alleges that the Defendant Karen A. Fitzmaurice (hereinafter "Fitzmaurice") resides at and claims to own property at 53 Pelham Street, Milford, Connecticut (the "Fitzmaurice Parcel").
The rear of the Fitzmaurice Parcel abuts the rear of the Har parcel.
The plaintiff alleges that the defendants have claimed an interest in her property.
The plaintiff's Amended Complaint is brought in four counts. The First Count seeks to quiet title in the disputed property.
The Second Count seeks a declaratory judgment.
The Third Count sounds in the tort of trespass.
The Fourth Count is an adverse possession claim.
On June 27, 2006 the defendant Fitzmaurice filed an Answer to the Amended Complaint as well as Special Defenses.
The Special Defense asserted by the defendant Fitzmaurice is that the defendant claims an interest in a portion of the plaintiff's property (hereinafter the "disputed area") that is adverse to the title of the plaintiff. She further asserts that she and her predecessors in interest have exclusively utilized and maintained the disputed area for at least fifteen (15) consecutive years. She additionally alleges that her possession has been open, visible, exclusive and hostile, without license or consent by the plaintiff or her processors. She claims ownership of the disputed area pursuant to the provisions of § 52-575 C.G.S.
On September 16, 2006, the defendant Boreiko filed an Answer and Counter Claims to the plaintiff's Amended Complaint.
The First Count of the counter claim plaintiff Boreiko is a quiet title action.
The Second Count of the counter claim plaintiff Boreiko seeks a declaratory judgment.
The Third Count of the counter claim plaintiff Boreiko sounds in the tort of trespass.
The Fourth Count of the counter claim plaintiff Boreiko is brought pursuant to the provisions of § 52-575 and seeks ownership of the disputed area by adverse possession.
Facts
Robert Sozanski and his mother, Anna Sozanski, purchased 127 Melba Street, Milford, Connecticut from Estelle Gainer on July 14, 1975. Anna Sozanski subsequently quit claimed her interest to Robert on July 24, 1980. (Defendant's Exhibit 59.)
Mr. Sozanski met with Dean Har and the plaintiff approximately five times about purchasing the house. Sozanski took Har outside and explained to him the boundaries of the property. He explained to him from the drill hole 90 feet to approximately the Mimosa Tree was one of the property lines and then "jogs to a pipe" indicating the 61.50 foot bound. (Sozanski Deposition Tr. Pg. 26, 04/20/07.)
Sozanski gave Dean Har the Gainer (Williams) survey map when he was describing the property lines. (Plaintiff's Exhibit 5; Sozanski Deposition Tr. Pg. 26, 04/20/07.)
Sozanski credibly testified at a deposition that he never represented to the Hars that he owned to the occupation lines (59.36 line and 40.27 line) shown on the Gainer (Williams) Map. (Sozanski Deposition Tr. Pgs 26-27, 04/20/07.)
Sozanski further credibly testified that he owned the premises from 1975-1999, and occupied the premises at least 20 years. (Sozanski Deposition Tr. Pgs. 26-27, 04/20/07.)
When Sozanski took occupancy of 127 Melba Street in 1977 or 1978 the hedges he saw in 1975 (along the 59.36 line) had been cut back by Ben Boreiko to the same location as they were when he sold the property to Dean Hat. He did not object to the cutting of the hedges because he did not own them. (Sozanski Deposition Tr. Pgs. 15-16, 59-61, 04/20/07.)
Sozanski credibly testified that while he was in possession of the property he believed that Ben Boreiko's property Mimosa tree. (Sozanski Deposition Tr. Pg. 89, (14/20/07.)
Dr. Dean Har acquired title to 127 Melba Street (the "Har Property") from Robert Sozanski, by Warranty Deed, dated April 29, 1999, recorded in Volume 2346, Page 510, of the Milford Land Records. (Plaintiff's Ex. 61, the "Har Deed".)
The plaintiff, Wanda Febus, is the wife of Dr. Har. She acquired title to the Har Property by Quit Claim Deed from her husband and herself, dated May 8, 2003, and recorded in Volume 2727, Page 241, of the Milford Land Records. (Plaintiff's Ex 63.)
When the Hars moved in they did not cut the hedge or mow the lawn in any of the disputed area until 2002 when a dispute arose between the Fitzmaurices, Boreikos and the Hars about a fence that the Hars were putting on their sea wall.
Before the dispute arose the disputed area wasn't in dispute and was treated more a neutral zone by the parties and their predecessors in title. None of the parties hereto acted in a manner that indicated that they were attempting to visibly and exclusively possess the disputed area under a claim of right with the intent to use the property as their own without the consent of the owner.
In 2002 the Hars replaced what had been a seven-foot wooden seawall with a twelve- to thirteen-foot concrete block wall. (K. Fitzmaurice Tr. 11/16/07 Pg. 9.)
Dorothy Borieko asked the Hars not to put a fence on the sea wall. Although she alleged at trial that she did this for reason that she believed the sea wall to be partially on her property, (K. Fitzmaurice Tr. 11/16/07 Pg. 10.) The court finds this testimony to be problematic for reason that it does not seem credible that she would object to the erection of a fence partially on her property, but not object to the construction of the sea wall partially on her property.
Fitzmaurice and Boreiko filed a request with the Zoning Department in Milford that the fence be found in violation of zoning. This resulted in years of conversations with officials of the Zoning Board and the Zoning Board of Appeals. (K. Fitzmaurice Tr. 11/16/07 Pgs. 10.)
The area consisting of the Fitzmaurice and Boreiko properties and the Har Property had been a friendly neighborhood, at least as far back as 1952, when the Boreikos purchased the Boreiko Property.
Since 2002 the relationship between the Boreikos, Fitzmaurices and Hars soured and the Police have been called on occasions.
From 2002 the Hars have made claims to land that the Boreikos and the Fitzmaurices believed that they had ownership and visa versa.
Neither the Boreikos nor the Fitzmaurices knew of the area they claimed by adverse possession until they saw it on the Fisher map and had it explained to them by Mr. Fisher in February of 2006. (Tr. 11/16, pp. 3, 4; pp. 41, 61.) The Fitzmaurices were willing to give up their claim during their dispute with the Hars over the fence on the sea wall. (Defendant's Ex. 115.)
Neither the Boreikos nor the Fitzmaurices ever enclosed or otherwise tried to keep anyone, including the Hars, out of the area they claim by adverse possession.
The parcels that are the subject of this action came out of subdivisions made in 1900 and 1904.
In 1897 a single trolley track ran in the center of a 30-foot trolley right of way. The 30-foot trolley right of way ran through what is now the defendants' property and the southern (sometimes referred to as the eastern) boundary of the right of way established 120 feet of the plaintiff's easterly boundary line.
That southern boundary was established at a distance of 15 feet from the center line of the single trolley track. At no time has the land encompassing the trolley right of way ever been land owned by the plaintiff or any of her predecessors in title.
In 1901 a second trolley track was added along side the first tract. The original 30-foot trolley right of way was widened by 18 inches on the north side of the right of way and the second track was placed with the center line of said second track being 10 feet to the north of the centerline of the original single track.
The addition of the second track had no affect on the location of the southerly boundary of the 30-foot right of way established in 1897. Several deeds and surveys involving the plaintiff's land were prepared subsequent to the creation of the plaintiff's parcel of land and after the construction of the second trolley track which surveys and deeds erroneously set the southerly boundary of the trolley right of way by measuring 20 feet from the centerline of the second track rather than 15 feet from the center of the first, single track. The effect of the error was to interpret the southerly boundary of the trolley right of way 5 feet further to the north than it actually was when it was established in 1897. This is a common boundary line with the Defendant Fitzmaurice and it is not the hedge line as the Plaintiff claims.
This error was perpetuated over the years and was discovered by Lawrence Fisher, the defendants' surveyor, when he resurveyed the lands of the plaintiff and defendants. The plaintiff's surveyor, Michael O'Bymachow, prepared a Dependent Resurvey of only the plaintiff's land choosing to rely, in part, on a prior survey of the plaintiff's land prepared by Lawrence Williams in 1975 which surveys perpetuated the error in establishing the location of the southerly boundary of the trolley right of way.
Only a very short section of the trolley right of way divides the plaintiff's land from that of the defendant, Fitzmaurice, and that the southerly boundary of the trolley right of way is not a common boundary with the defendant, Boreiko. It is the error in locating the correct position on the ground of the southerly boundary of the trolley right of way that leads to the inaccuracies in locating the plaintiff's boundary lines on the surveys presented by the plaintiff.
Discussion Quiet Title
The relief afforded by a quiet title action is a full determination of the rights of the parties in and to the land in dispute. Lake Garda Improvement Ass'n. v. Battistoni et al, 155 Conn. 287, 293, 231 A.2d 276 (1967).
Connecticut General Statute § 47-31 provides in relevant part that: "(a) An action may be brought by any person claiming title to, or any interest in, real . . . property, 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 render judgment determining the questions and disputes and quieting and settling the title to the property."
In a statutory action to quiet title, a party can prevail only through the strength of his own title, and not from the weakness of the title or interest of his adversaries. Loewenberg v. Wallace, 147 Conn. 689 (1960). "A person who claims title by deed is claiming that he has good record title which entitled him, in an action to quiet title, to a judgment of ownership." DeVita v. Esposito, 13 Conn.App. 101, 106 (1987).
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 (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; Faiola v. Faiola, 156 Conn. 12, 17, 238 A.2d 405; Katsoff v. Lucertini, 141 Conn. 74, 77, 103 A.2d 812; Patzloff v. Kasperovich, 116 Conn. 440, 441-42, 165 A. 349; CT Page 2356 Botsford v. Wallace, 69 Conn. 263, 271, 37 A. 902. 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; Gioia v. Annunziata, 102 Conn. 52, 56, 127A. 921 [1925]; Raymond v. Nash, 57 Conn. 447, 452, 18 A. 714." 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, 18. 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 (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 (1996).
The O'Bymachow Survey
Michael O'Bymachow was contacted by Dr. Dean Har in 2003 and was told that he needed a survey because there was a discrepancy in the deed and the adjoining owner was claiming property. O'Bymachow has been a patient of Dr. Har since 2001.
Sometime in 2003 a Dependent Resurvey of the plaintiff's property was prepared by O'Bymachow. The 2003 O'Bymachow map has a notation that indicates: "Type of survey performed is a Limited Property/Boundary Survey and is intended to be Existing Building Location Survey." The survey also notes: "Boundary determination is based upon a Dependent Resurvey." Plaintiff's Exhibit 1 and 5. Although O'Bymachow purports to be a Dependent Resurvey of the Williams map, the plaintiff's boundaries as shown on the O'Bymachow map are considerably different and confer more land to the plaintiff than that shown on the Williams map. O'Bymachow finds that the plaintiff's parcel should include the land running to the occupation lines shown on the Williams' survey, even though that land area is not contained in the description in the plaintiff's deed. (O'Bymachow Tr. 8/2/07 Pg. 69.)
O'Bymachow testified that the introductory paragraph in Plaintiff's Exhibit 59, which description appears in a number of deeds, is the language which O'Bymachow feels includes the occupancy portion as shown on the Williams survey. He further testified that the triangular portion (easterly of Lots 31-33) as drawn on the 1900 map, Plaintiff's Exhibit 2, is the occupancy portion. However, the triangular portion is not easterly, but southerly of Lots 31-33.
O'Bymachow testified that that there is a strip of land between the Fitzmaurice/Boreiko property and the Har property and that he does not know who owns this property. He extended the Fitzmaurice and Boreiko side lot lines to the Har property line.
O'Bymachow testified that the mere existence of a statement of an occupancy line does not satisfy, in and of itself, the elements of adverse possession.
O'Bymachow's survey does not conform to Survey Regulations because it is neither a Dependent Resurvey nor a Resurvey.
The O'Bymachow map does not close which is a violation of State Survey Regulations. It also fails to locate and show three points on the ground from the prior survey (Williams) which is a necessary requirement to permit the later surveyor (O'Bymachow) to properly rely on the previous survey. This is also a violation of State Survey Regulations.
O'Bymachow testified that there is a conflict between the property described in the . . . or at least the remaining property in the 1900 Pond Point Beach map and the property described in the Williams map.
O'Bymachow used the Milford Coordinate system when preparing his survey which system is inaccurate. He testified that some surveyors find the system to be accurate and some do not.
Mr. Fisher, the defendant's surveyor, credibly testified that the Milford Coordinate system is not accurate.
There is no deed in the plaintiff's chain of title which contains the description or courses and distances as shown on the O'Bymachow survey. There is no root title in the plaintiff's chain of title for the land shown on the O'Bymachow survey beyond the deed lines shown on the Williams survey.
The Fisher Survey
After the Plaintiff filed suit the Defendants hired Lawrence Fisher in the fall of 2004 to survey their properties. Mr. Fisher has been a licensed surveyor in the state of Connecticut since 1979. He is a well qualified land surveyor. The court finds him to be credible and very persuasive witness. Fisher did not know either of the defendants until he was hired in 2004.
In the course of preparing his survey Fisher performed a detailed title search of the Boreiko, Fitzmaurice and Har/Febus properties along with various other properties in the neighborhood. He utilized maps and notes that were recorded on the land records as well as maps and notes not recorded which he obtained from the files of other land surveyors.
Fisher prepared a survey of the Boreiko and Fitzmaurice property boundaries which is Defendants' Exhibit 121. At the time of trial Fisher detailed on Defendant's Exhibit 121 the boundary line he found between the Har/Febus property and the defendants' property as a yellow line.
None of Mr. Fisher's conclusions are based upon adverse possession by either defendant and he did not testify with respect to adverse possession of the Har Property by either defendant. Tr. 11/15, p. 74.
At the time of trial Fisher detailed on Defendant's Exhibit 121 the boundary line on his survey as found by Williams on the Gainer map as a blue line.
At the time of trial Fisher detailed on Defendant's Exhibit 121 the boundary line on his survey as found by O'Bymachow as a pink line. There is no deed in the plaintiff's chain of title which describes the plaintiff's property as it is shown on the O'Bymachow map.
The Williams and O'Bymachow surveys are not accurate as to the location of the 120-foot arc (which is also the southerly boundary of the trolley right of way) or the 61.50-foot long portion of the common division line between the Plaintiff's property and the Fitzmaurice and Boreiko lots. The 120-foot arc should be measured 15 feet from the center line of the single trolley track laid out in 1897, not the double track laid out in 1901 which is the mistake other surveyors, including Williams, have made. The 61.50-foot boundary needs to measured from the southwest corner of Lot 33 and not from the point that Williams measured it which is nowhere near the southwest corner of Defendant's Exhibits 121 and 122 (Fisher surveys). The proper location of each of these lines is critical to establishing the correct location of the plaintiff's and defendants' boundary lines.
Relying on a hedge as a boundary line would only be appropriate if the deed stated that the boundary was intended to run along a hedge. There are no deeds that reference any hedge between the Fitzmaurice, Boreiko and Har/Febus property or describe the same as a boundary line.
The Fitzmaurice parcel is made up of two parcels. The first lot was sold off the Nettleton Map. Plaintiff's Exhibit 3. The second piece is a piece wherein the title goes back to a conveyance from an individual named Landine. The second piece abuts the first piece and runs back to the Har parcel. The Boreiko parcel is made up of two parcels. The first lot was sold off the Nettleton Map. Plaintiff's Exhibit 3. The second piece is a piece wherein the title goes back to a conveyance from an individual named Landine. The second piece abuts the first piece and runs along the boundary of the Har parcel to Long Island Sound.
The proper way to determine the boundaries of the Fitzmaurice, Boreiko and Har properties is by a Resurvey, which is the type of survey Fisher performed. A Dependent Resurvey is not the proper survey to determine disputed boundaries.
One of the most critical factors taken into account by Fisher in determining where the boundaries are located for the properties in question is to establish the curvature and location of the southerly boundary of the trolley right of way since this is one of the easterly boundaries of the plaintiff's land.
Exhibit 122 shows what happens to the various deed lines as they are extended down Melba Street. The only deed/survey line which lines up with a 1948 pipe on Melba Street is Fisher's survey. Both Williams' and O'Bymachow's survey lines miss this pipe and fail to conform to the actual street line. The Williams and O'Bymachow surveys significantly misplace the Melba Street line and run the same well into the front yards of neighboring properties.
Fisher explained how he calculated the actual distance owned by the plaintiff on Melba Street as 51.40 feet. He further explained how he calculated the actual distance owned by the plaintiff on Long Island Sound as 71.00 feet. Fisher noted that the notes of Frederick Hahn, Plaintiff's Exhibit 21B, shows the plaintiff as having 70 feet on the sea wall. Fisher noted that the City Tax Assessor's map, Plaintiff's Exhibit 66, which is not a boundary survey, shows the Plaintiff as having 70 feet on Long Island Sound. Fisher noted that the City Sewer Assessment Plan, Plaintiff's Exhibit 68, which is not a boundary survey, shows the Plaintiff as having 70 feet on Long Island Sound. Fisher noted that the Metcalf and Eddy map, Plaintiff's Exhibit 33, and referred to in Plaintiff's Exhibit 64, was drawn only to locate the sewer line easement and not to establish boundary lines and shows the Plaintiff as having 70 feet on Long Island Sound and Boreiko as having 36 feet on the Sound.
This court concludes that Fisher's analysis is the more credible and convincing survey of those presented to the court.
Adverse Possession
"To establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner." Allen v. Johnson, 79 Conn.App. 740, 744 (2003) (internal citations and quotations omitted).
"A finding of adverse possession is to be made out by clear and positive proof. Clear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the fact in issue in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. The burden is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. The burden of proof is on the party claiming adverse possession." Id. at 745.
"[A]n exclusive possession, if it is without the consent or license of the owner, will result in the acquisition of title by adverse possession when it extends over a marked and readily visible area . . . if the other requisites of acquisition of title by adverse possession are established." Loewenberg v. Wallace, 151 Conn. 355, 357 (1964).
In considering a claim of adverse possession, "[i]t is sufficient if there is an adverse possession continued uninterruptedly for 15 years, whether by one or more persons." The possessions must be connected and continuous. Smith v. Chapin, 31 Conn. 530, 531 (1863).
The court notes that the plaintiff in this matter did not own her real property for a period of fifteen years, yet asserts that she owns the disputed property by adverse possession. The plaintiff's theory that she is entitled to the property despite the fact that she did not personally own the property involves the concept of "tacking." Tacking requires the continuous possession by two or more persons. Privity of estate is not necessary, but rather, privity of possession. It is sufficient if there is an adverse possession continued uninterruptedly for 15 years whether by one or more persons. Matto v. Dan Beard, Inc., 15 Conn.App. 458, 479-81 (1988).
In the current situation, this court has factually found that Sozariski, the plaintiff's predecessor in title did not attempt to adverse claim the disputed and therefore the plaintiff's assertion that she may tack her claim to that of her predecessor must fail.
The court notes that there was a great deal of evidence concerning the various parties to this action mowing of the grass in the disputed area and maintaining the hedge near the disputed area. The court did not find this evidence to be persuasive. It is well settled law that ". . . the mere mowing of the lawn and plantings is not that type of use or action which would be commonly or reasonably taken to oust the rightful owners" and "the adverse possession must be notorious so as to give notice to an owner that a claim is being made contrary to his ownership or at least some act or constructive notice that such a hostile claim is being made." Waggoner v. The Benton Beach Corporation, No CV960391414S, 1998 Conn.Super. LEXIS 956, 15 (April 3, 1998).
Based on the factual findings as discussed earlier herein, this court finds that the plaintiff has failed in her complaint and the defendants have failed in their counterclaims to prove by clear and convincing evidence that they and/or their predecessors in title adversely possessed the disputed area for an uninterrupted period of fifteen years.
Trespass
The essentials of an action for trespass are: 1.) ownership or possessory interest in land by the plaintiff; 2.) an invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; 3.) done intentionally; and 4.) causing direct injury. Avery v. Spicer, 90 Conn. 576, 579 (1916); 75 Am.Jur.2d Trespass §§ 3, 8, 14, 25, 35. Trespass must be proven by a preponderance of the evidence, and the party claiming trespass must establish that the other party proximately caused his damages. Fischer v. Shook, 2005 WL 1092286 *1, *2 (Shaban, J.). "A trespass on real estate is the doing of a direct injury to property by force." Lake Garda Improvement Ass'n v. Battistoni, CT Page 2362 160 Conn. 503, 516 (1971). "The invasion, intrusion or entry must be physical . . . Thus, in order to be liable for trespass, one must intentionally cause some `substance' or thing to enter upon another's land." Id. "When a party prevails on a trespass claim, it is entitled to damages based on the lost use value of the property [trespassed upon] and any harm caused by the trespass during the defendant's occupation." Robert v. Scarlata, 96 Conn.App. 19, 24, (2006). "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove." Restatement (Second) of Torts, § 158.
Based on the factual finds as discussed earlier herein, this court finds that all of the parties have failed to meet their burden of proof to prove a trespass by a fair preponderance of the evidence.
Declaratory Judgment
"A declaratory judgment action is a special proceeding under Connecticut General Statutes § 52-29, as implemented by Practice Book § 17-54 et seq . . . The purpose of a declaratory judgment action . . . is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between parties . . ." Manweiler v. LaFlamme, 232 Conn. 27, 33 (1995). A declaratory judgment may be used to determine title to real property. See Provenzano v. Provenzano, 88 Conn.App. 217 (2005) (declaration of title by adverse possession); Trinity United Methodist Church v. Cleaver, 2006 WL 1148229 *1 (Peck, J.) (Declaration of ownership); Rosenblum v. Chellstrop, 29 Conn.Sup. 210 (1969) (declaration of boundary lines). "The sole function of a trial court in a declaratory judgment action is to ascertain the rights of the parties under existing law." Preston v. Connecticut Siting Council, 21 Conn.App. 85, 89 Cert denied, 215 Conn. 805 (1990).
"A declaratory judgment action may be maintained if all of the following conditions have been met: 1) the party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; 2.) there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and 3.) in the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure."
"It is a well established rule that `[t]he mere fact that a party sees fit to institute an action for a declaratory judgment in no way operates to alter or shift the ordinary rules as to the burden of proof by choosing the procedure of such an action." Scott v. General Iron and Welding Co., Inc., 171 Conn. 132, 139, citing, Keithan v. Massachusetts Bonding Ins. Co., 159 Conn. 128. Accordingly, the party pressing the claim bears the burden of proof on that claim with respect to the declaratory judgment.
"[W]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law, Tellier v. Zarnowski, 157 Conn. 370, 373 (1969); or to establish abstract principles of law; Norwalk Teachers Ass'n. v. Board of Education, 138 Conn. 269, 272 (1951); or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights; Gannon v. Sanders, 157 Conn. 1, 9 (1968); it may be employed in a justicable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof. Conn. P.B. 17-55." Milford Power Company, LLC v. Alstom Power, Inc., 263 Conn. 616, 626 (2003).
As was stated earlier herein, the evidence presented at trial proves that the Fischer survey accurately reflects the boundaries of all of the properties in question. In light of this fact the court will enter a declaratory judgment consistent with this finding.
Conclusion
The plaintiff Wanda Har has failed to meet her burden of proof as to the all counts of her complaint and therefore judgment may enter against the plaintiff and for the defendants on the complaint.
As to Counts One and Two of the counterclaim by plaintiff Boreiko, she has met her burden of proof concerning the boundaries of the property in question and pursuant to the provisions of § 47-31 and § 52-29 C.G.S., this court finds and declares that counterclaim defendant Har has no interest in the "Boreiko Parcel" as described in the Fourth Count of the counterclaim plaintiff's complaint.
The court finds that Boreiko has failed to meet her burden of proof to show that the counterclaim defendant Mar trespassed upon her property and judgment may enter against her and for the counterclaim defendant in the Third Count (trespass).
The court finds that Boreiko has failed to prove possession of the disputed area by adverse possession and judgment may enter for the defendant Har on the Fourth Count of the counter claim.
As to the defendant Fitzmaurice, the court finds that the defendant has failed to meet her burden of proof by clear and convincing evidence that she and her predecessors in title adversely possessed the disputed area and therefore she has failed to prove her special defense of adverse possession and judgment may enter accordingly.
As to the issue of costs and fees, this court has considered this issue at great length and has concluded that under the particular circumstances of this action, equity requires that each party bear their own costs in relation to the prosecution and defense of this action. So ordered.