Mierzejewski v. Laneri

Full title: CHARLES D. MIERZEJEWSKI v. ROBERT LANERI ET AL

Court: Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: Feb 23, 2010

2010 Conn. Super. Ct. 5518 (Conn. Super. Ct. 2010)

Opinion

No. MMX CV07 500 3402 S

February 23, 2010

MEMORANDUM OF DECISION

BEAR, J.

On November 7, 2007, the plaintiff Charles D. Mierzejewski ("Mierzejewski," pronounced "Meerz eh jeff skee") filed his October 10, 2007, complaint seeking a judgment (1) to quiet title to a portion of his real property that abuts the southern boundary of real property owned by the defendants Robert Laneri and Janice Laneri ("Laneri" or the "Laneris"); and (2) the location of a right of way in favor of the defendant Crary Brownell ("Brownell") that is described in a 1958 deed to predecessors in title of Brownell.

The current issues in dispute between the plaintiff and the defendants have their genesis in but are different from the issues in dispute in the case of Mierzejewski v. Brownell, 2005 Ct.Sup. 13015, No. CV 03-0100645-S, Superior Court, Judicial District of Middlesex at Middletown (Aurigemma, J., September 15, 2005), affirmed, 102 Conn.App. 413, 925 A.2d 1126 (2007), cert. denied, 284 Conn. 917, 931 A.2d 936 (2007). However, the Laneri defendants in this case were not defendants in that case.

In Mierzejewski v. Brownell, supra, 2005 Ct.Sup. 13015-17, 13019-20 (footnote omitted), wherein Mirezejewski claimed that he had extinguished the Brownell deeded right of way over his property by adverse possession or prescriptive easement, after a trial Judge Aurigemma made the following findings of fact:

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The plaintiff purchased his property, a developed parcel known as 133 Bashan Road on Bashan Lake in East Haddam (the Mierzejewski Property"), in 1994 from Ronald and Karoline Swan. The defendant obtained his property, an undeveloped parcel of approximately 3.1 acres on Bashan Lake (the "Brownell Property") by quitclaim deed from his mother, Helen Brownell in December 1997. The Brownell Property had been in the defendant's family since 1958.

The deed to the defendant contained the following language:

Said property is more particularly described as Parcel No 1. on a map entitled, "Map showing property of Constance S. Cuthbertson, East Haddam, Connecticut. March 1950, Scale 1" = 50,' Lawrence E. Gitchell, Registered Land Surveyor as amended by a map showing dividing line certified by Carroll A. Campbell, Registered Land Surveyor and C.E., Middletown, Connecticut, October 1958.

Together with a right of way over an old highway as more fully set forth in a Warranty Deed from Arthur Foreman and Lillian M. Foreman to Nathan Brownell and Crary Brownell, dated October 8, 1958, and recorded in the East Haddam Land Records, Volume 72, Page 436.

Being the same premises described in a Quit Claim Deed from Crary Brownell to Sumner I. Brownell, dated March 8, 1974, and recorded in the East Haddam Land Records, Volume 104, Page 472. Also see Volume 174, Page 109.

The Mierzejewski Property was also a part of the property of Arthur and Lillian Foreman referred to in the description above. The Foremans acquired 13.2 acres of property with a frontage on Lake Bashan and access to Bashan Road on September 25, 1958 by a Warranty Deed from Constance Sauer Cuthbertson. On the same day the Foremans acquired the property, they subdivided it by transferring 3.1 acres in the western part of the property to Nathan and Crary Brownell. The deed from the Foremans to the Brownells created an easement of access over the land retained by the Foremans to the land conveyed to the Brownells. The deed stated:

Together with a right of way over an old highway that runs along land of William B. Robinson [a predecessor in title of the Laneris] and continues through other land of the Grantors to a point opposite the boundary described as 72.1 feet of the granted premises where the right of way turns Southerly from said old highway and enters upon the granted premises. Said right of way shall be 20 feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises.

The Old Highway referred to in the deed from the Foremans was discontinued as a public highway in 1866. The property conveyed by the Foremans to the Brownells in 1958 has stayed in the Brownell family since that date. The right of way is the only access of the Brownell Property to any roadway.

After they conveyed property to the Brownells, the Foremans conveyed out additional portions of the property north of the Old Highway shown on the Cuthbertson Map. The property remaining after these conveyances is what is now the Mierzejewski Property.

In 1986 the Foremans conveyed the Mierzejewski Property to Norbert Pomeranz. The deed to Pomeranz made reference to the access easement in favor of the Brownell Property by saying the property was subject to the easements shown on the Cuthbertson Map. On April 1, 1991, Pomeranz conveyed the Mierzejewski Property to Ronald and Karoline Swan. This conveyance was again subject to the easement in favor of the Brownell Property. The Swans conveyed the Mierzejewski Property to the plaintiff in 1994. The deed to the plaintiff made a specific reference to the right of way described in the 1958 deed from the Foremans to the Brownells.

When Pomeranz acquired the Mierzejewski Property he made improvements on the property, including the installation of a new septic system. At the time Pomeranz put in the new septic system the ordinances of the Town of East Haddam required that Pomeranz apply for a building permit prior to constructing the septic system. Pomeranz did not apply for any permit. The septic system involved the installation of a septic tank under a portion of the right of way. Pomeranz had fill placed over the tank to form a slightly elevated area. That elevated area does not have any pump, manhole cover, stand pipe or any other evidence that there is a septic tank or anything else beneath it. Since the land in the area is sloping and uneven, the area above the septic tank appears to be an unimproved portion of the plaintiff's property with trees and other vegetation growing on it.

When the plaintiff purchased the Mierzejewski Property he was aware of the right of way described in the 1958 deed from the Foremans to the Brownells. Moreover, the right of way is mentioned in two title insurance policies, one dated June 21, 1994, issued in connection with the plaintiff's purchase of the property, and the other dated July 11, 2003, in which the plaintiff signed an Owner's affidavit which referenced the right of way.

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In the present case, apart from the construction period, there was never any open and visible interference with the right of way. The court finds that the area of the right of way under which the septic tank is located contains absolutely no indicia that anything is underneath the ground and appears only as a slight elevation in the terrain which would not interfere with the use of the right of way any more than any natural elevation would interfere. Since the plaintiff has failed to prove that he or his predecessors have by adverse use of a notorious, exclusive and hostile character, obstructed and excluded the owners of the dominant estate, the defendant, or his predecessors, he has failed to prove either adverse possession or a prescriptive easement.

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The parties also disagreed as to the location of the right of way. The plaintiff has submitted a survey map performed at his request which shows that the easterly portion of the right of way passes over only 10 feet of the plaintiff's property and ten feet of the property of Robert and Janice Laneri. The defendant claims that all sections of the right of way are entirely on the Mierzejewski Property. The court agrees with the defendant.

The language of the original grant of the right of way found in the deed from the Foremans to the Brownells provides:

Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 72.1 feet of the granted premises where the right of way turns Southerly from said old highway and enters upon the granted premises. Said right of way shall be 20 feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises.

The Robinson property, now the Laneri Property, was never owned by the Foremans, and, therefore, they had no right to grant any right of way over it. The language of the deed does not purport to do so, but rather speaks of the right of way running through the land of the grantors and along the Robinson property. The meaning and effect of the language in the deed is to be determined by the intent expressed within the deed and not by speculating at the intent of the parties. Dent v. Lovejoy, 85 Conn.App. 455, 462, 857 A.2d 952 (2004); Bird Peak Road Association, Inc. v. Bird Peak Corp, 62 Conn.App. 551, 557, 771 A.2d 260 (2001).

The language in the Foreman deed granting the right of way at issue here was quite clear as to the size of the right of way. The right of way runs along the northern property line of the Mierzejewski Property and is 20 feet in width, with the entire right of way being located on that property. In accordance with the language of the deed, the right of way may be used for vehicles, foot traffic, utility access and any and all other purposes in connection with the Brownell Property.

The deeded right of way is ". . . a right of way over an old highway . . ." There is no dispute between the parties about the actual location of the bed of the "old highway" although it was abandoned by the town of East Haddam in 1866, and there is no serious dispute that Brownell's deeded right of way is over such old highway bed and not over any other land of Mierzejewski. In this case, however, Brownell is supporting the position of the Laneris that the southern boundary of their easterly parcel, the "Homestead" parcel, is the center line of such old highway. If this position were correct, Brownell's deeded right of way that traverses to the south of the Laneri "Homestead" parcel is ten feet and not twenty feet wide since it is limited to the bed of such "old highway" and the Laneri "Homestead" parcel had not previously been owned by Mr. and Mrs. Foreman. Thus, Brownell does not have a claim based on his deeded right of way to traverse the northerly ten feet of the old highway bed if it is owned by the Laneris. This seemingly counterintuitive and self-defeating approach, while evidence of the depth of Mr. Brownell's probably justified negative attitude toward Mr. Mierzejewski, calls into question his credibility in this case.

In its decision, supra, 102 Conn.App. at 415-18, the Appellate Court set forth the facts and history of the Mierzejewski/Brownell dispute as follows:

The plaintiff, Charles D. Mierzejewski, appeals from the judgment of the trial court rendered in favor of the defendant, Crary Brownell, in this action seeking to extinguish the defendant's right-of-way over the plaintiff's property. On appeal, the plaintiff claims that the court improperly found that he had not proven the extinguishment of the right-of-way. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our resolution of the issues on appeal. The parties are the owners of adjoining parcels of land in East Haddam that each abut Lake Bashan. The plaintiff is the owner of an improved parcel of land located at 133 Bashan Road. The defendant's parcel, which is located behind the plaintiff's parcel, is unimproved and landlocked, except for a deeded right-of-way over the plaintiff's property.¹

1 It appears that the plaintiff's parcel does not have actual frontage on Bashan Road. The state owns the land that lies between the plaintiff's property and Bashan Road. The plaintiff, however, traverses the property owned by the state in order to access Bashan Road. The defendant, in turn, has to utilize the right-of-way over the plaintiff's property and then cross the property owned by the state in order to access the public road.

On October 8, 1958, Arthur Foreman and Lillian M. Foreman acquired approximately 13.2 acres of land from Constance Sauer Cuthbertson by warranty deed, which was recorded in volume 72, page 435, of the East Haddam land records.² On that same day, the Foremans subdivided the 13.2 acre parcel and conveyed 3.1 acres to Nathan Brownell and Crary Brownell by warranty deed, which was recorded in volume 72, page 436. This deed further described the parcel conveyed as "Parcel No. 1" on a map entitled, "Map showing property of Constance S. Cuthbertson," to which we hereinafter refer to as the Cuthbertson map.³

2 All deed references to recordings in land refer to the land records of the town of East Haddam.

3 The full title of the map is "Map showing property of Constance S. Cuthbertson, East Haddam, Connecticut, March 1950, Scale 1" = 50,' Lawrence E. Gitchell, Registered Land surveyor as amended by a map showing dividing line certified by Carroll A. Campbell, Registered Land Surveyor and C.E., Middletown, Connecticut, October 1958."

The Brownell parcel had no direct access to any public street. Therefore, the deed from the Foremans to the Brownells granted a right-of-way for the benefit of the Brownells and their heirs and assigns. The deed provided in relevant part: "Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 72.1 feet of the granted premises where the right of way turns Southerly from said old highway⁴ and enters upon the granted premises. Said right of way shall be [twenty] feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises." Ultimately, the title passed to Helen Brownell, the defendant's mother, by quitclaim deed, dated April 6, 1983, and recorded in volume 174, pages 109-10. The defendant acquired the property in 1997, from his mother by a quitclaim deed, dated December 12, 1997, and recorded in volume 421, pages 108-09.

4 The court also found that the "old highway" referred to in the deed was discontinued as a public highway in 1866.

All deeds in the defendant's chain of title contain a legal description of the property, together with a right-of-way.

The Foremans further subdivided their property, conveying additional portions. Specifically, on August 8, 1986, the Foremans conveyed what is now the plaintiff's property to Norbert Pomeranz by warranty deed, which was recorded in volume 217, pages 74-76. The Foreman to Pomeranz deed stated that the property was subject to "all easements and rights of way" shown on the Cuthbertson map. The court found that shortly after Pomeranz acquired 133 Bashan Road, he had a septic system installed, without obtaining proper municipal permits, under a portion of the Brownell right-of-way and covered it with fill, forming an elevated area. The court also found that the elevated area did not contain any indication that a septic tank was located beneath it, such as a pump, manhole cover or standpipe. Further, the court found that the surrounding land was wooded, sloping and uneven and that the area above the septic tank had trees and other vegetation growing on it.

Thereafter, in April 1991, Pomeranz conveyed the parcel, subject to the right-of-way in favor of the Brownell property, to Ronald Swan and Karoline Swan by warranty deed, which was recorded in volume 301, pages 171-73. The plaintiff purchased the property from the Swans in 1994, and the warranty deed, recorded in volume 362, pages 271-72, specifically stated that the property was subject to the right-of-way described in the Foreman to Brownell deed that was recorded in volume 72, page 436.

After the defendant informed the plaintiff of his intentions to clear the right-of-way in 2003, the plaintiff commenced this litigation, filing an amended two count complaint. In count one, the plaintiff claimed to have acquired title to the right-of-way from the defendant by adverse possession. In the second count, the plaintiff alleged, in the alternative, that he had acquired title to the use and enjoyment of the disputed area by prescriptive easement. The plaintiff requested a judgment establishing that he had acquired title to the right-of-way and determining the rights of the parties in and to the area and settling title thereto. The defendant subsequently filed an answer, five special defenses and a five-count counterclaim, including easement by necessity, easement by estoppel, implied appurtenant easement, easement by prescription and right-of-way pursuant to General Statutes § 13a-55.

A trial to the court was held on May 18 and 19, 2005. On September 15, 2005, the court issued a memorandum of decision, ⁵ concluding that the plaintiff had not established the necessary elements of adverse possession or prescriptive easement so as to extinguish the defendant's right-of-way over the plaintiff's property.⁶ The plaintiff now appeals from the judgment of the trial court.

5 The court noted that the special defenses and counterclaim of the defendant "apparently have been filed in the alternative." The court then concluded that it did not need to address the defendant's special defenses and counterclaims, "[h]aving decided that the deeded right-of-way in question still exists and has not . . . been extinguished by the plaintiff . . ." See Lisieski v. Seidel, 95 Conn.App. 696, 699, 899 A.2d 59 (2006).

6 In its memorandum of decision, the court also found that the right-of-way was located on the plaintiff's property. In his brief, the plaintiff presents several issues in connection with a claim that the court improperly determined the precise location of the right-of-way.

A reading of the court's memorandum of decision, however, reveals that the court did not determine the exact location of the right-of-way. More specifically, the court did not decide whether the northern boundary of the right-of way was a stone wall or was the centerline of the old highway. Rather, the court merely concluded that the entire twenty-foot right-of way, which "runs along the northern property line of [the plaintiff's property]," was located on the plaintiff's property. This finding, however, is not inconsistent with its conclusion that the plaintiff had failed to extinguish the right-of-way by prescription.

The court's conclusion that the plaintiff had not extinguished the right-of-way by prescription was not dependent on a determination of the exact location of the right-of-way. The court had before it evidence in the form of a survey from Swamp Yankee Survey, LLC, that was prepared by Douglas Bonoff, a licensed Connecticut land surveyor. This survey showed that the septic field covered a large area, namely, from the stone wall along the northern boundary of the old highway to a substantial portion of the old highway and then to a substantial portion of the plaintiff's land south of the old highway. As we iterate in part II, the entire septic area was wooded, sloping, uneven and unmarked on the surface by any manhole cover, standpipe or pump, and those attributes were common to the entire area it covered. Therefore, the court's disposition of the extinguishment claim would be the same, regardless of the exact location of the northern boundary. Accordingly, we conclude that the plaintiff's claim lacks merit and do not address it further.

(Emphasis supplied.)
Footnote 6 sets forth the task of the court in this case that the plaintiff Mierzejewski instituted after the decision of the Appellate Court in two counts against defendants Robert Laneri, Janice Laneri and Crary Brownell. The plaintiff Mierzejewski's one-count complaint seeks a determination of the precise location of a portion of the northern boundary of his property and thus also the precise location of the southern boundary of the defendant Laneris' "Homestead" parcel, also referred to as the "front parcel." In such complaint the plaintiff seeks a determination whether the southern boundary of the Laneri "Homestead" parcel is the "ancient" stone wall or the center line of the old highway. In such complaint the plaintiff also seeks a determination of the location of the Brownell right of way. The plaintiff alleged:

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14. The true location of the boundary line between the property of the Plaintiff and the property of the Defendants, Robert J. Laneri and Janice M. Laneri, is located along a stone wall running along the north side of a certain "Old Highway" which goes through Plaintiff's property.

15. A dispute exists between and among the parties concerning the location of Plaintiff's northern boundary with the Defendants, Robert J. Laneri and Janice M. Laneri, the location of the easement in favor of the Defendant, Crary Brownell across the land of Plaintiff, and the rights in, and location of the easement, across the land of the Defendant, State of Connecticut.

The stone wall referred to above runs on a southwest/northeast axis along the southern portion of both Laneri parcels and on the east near Bashan Road it curves north for a relatively short distance.
The other defendant, the State of Connecticut, did not participate in the trial and thus did not dispute the rights of way over its property of the plaintiff and defendant Crary Brownell. Unlike (1) the properties of the plaintiff and the Laneri defendants, (2) the properties of the plaintiff and defendant Brownell, and (3) the properties of the defendant Brownell and the Laneri defendants, the property of the State of Connecticut, formerly owned by the Moodus Reservoir Company, was not alleged to have had and no evidence was submitted that it had a prior owner in common with any of the Mierzejewski, Laneri or Brownell predecessors in title.
The "old highway" prior to its abandonment in 1866 crossed on the south of the Laneri "back" or "wood" parcel and the "Homestead" parcel, and on the north of the Mierzejewski and Moodus Reservoir parcels to what is now Bashan Road. Thus, if the common law presumption referred to by the parties and elsewhere in this decision applied, after such old highway was abandoned in 1866 the boundary of each such property was initially presumed to be the center line of such abandoned highway, but such presumption if it applied was rebuttable by facts, an example of which might have been that the land under the highway was originally owned by predecessors in title to what became the Mierzejewski parcel, and another example might be that after such highway was abandoned the adjoining owners determined that the boundary of what became the Laneri and Mierzejewski parcels would continue to be the "antique" stone wall, or as actually occurred that the presumption was extinguished by the common ownership of such parcels.
With respect to the Moodus Reservoir parcel to the south of the Laneri "Homestead" parcel, to the east of the Mierzejewski parcel and abutting Bashan Road, whether such center line presumption was actually accepted by the owners of such Moodus Reservoir parcel and by any of the predecessor owners of the Laneri "Homestead" parcel at any time (although as discussed below such presumption is applied on at least some of the maps in evidence) and whether the Brownell right of way extends to the east of the Mierzejewski parcel over such "Homestead" and Reservoir parcels is not before the court in this case.
The Laneri "Homestead" and the Mierzejewski parcels have separate chains of title but both were owned by C. Theodore Sauer between 1914 and 1922. C. Theodore Sauer is thus a "common grantor" as to each such parcel. The Brownell parcel was also owned by C. Theodore Sauer between 1914 and 1922. It and the Mierzejewski parcel were divided in 1958.
Another decision concerning the matters now or previously in dispute between the parties is Mierzejewski v. Laneri, 2009 Ct.Sup. 13335, 48 Conn. L. Rptr. 376, No. CV07-5003402-S, Superior Court, Judicial District of Middlesex at Middletown (Holzberg, J., August 3, 2009). All defendants had moved for summary judgment:

Both defendants now move for summary judgment arguing that the doctrine of res judicata prohibits Mierzejewski from relitigating in this action the same issue that they claim was raised in the [2003] action and decided by Judge Aurigemma. In addition, the defendants argue that the survey maps submitted by the plaintiff and adopted by the defendant Brownell in the earlier proceeding conclusively establish, as judicial admissions, the boundary between the Mierzejewski and Laneri properties. The plaintiff objects to the defendants' motions, arguing that res judicata does not bar the present action because both Judge Aurigemma and the Appellate Court specifically concluded that the boundary of the easement was not established in the earlier action. Plaintiff also insists that whatever the probative force of the survey maps admitted in the prior proceeding, they do not constitute binding admissions that control the disposition of this action.

Id., 13336.
Judge Holzberg denied the defendants' claim that this action was barred by the application of res judicata:

Pursuant to this framework, the analysis is twofold. First, is the claim raised in the present action the same as presented in the former one? If not, is the claim in this action one that arises out of the same transaction that gave rise to the first proceeding and therefore could have been raised in the earlier case? Each inquiry is considered in turn. A comparison of the complaint, pleadings and memoranda in both actions discloses that the claim asserted in this action was not in fact raised or decided in the [2003] action. As previously noted, the [2003] case was between Mierzejewski and Brownell only; Laneri was not a party to that action. That action raised and resolved the specific issue of whether Brownell's deeded easement was extinguished by prescription or adverse possession. By its terms it did not raise, nor did Judge Aurigemma or the Appellate Court determine, the precise location of the boundary between the Mierzejewski and Laneri properties. In fact, the Appellate Court specifically found in footnote 6 of its opinion that the "[trial] court's memorandum of decision did not determine the exact location of the right-of-way" noting that "the court's disposition of the extinguishment claim would be the same, regardless of the exact location of the northern boundary." Mierzejewski v. Brownell, supra, 102 Conn.App. at 413 n. 6.

It is clear that the location of the boundary between the Mierzejewski and Laneri properties was neither raised nor decided in the earlier litigation. That prong of the res judicata doctrine that bars the assertion of claims in a subsequent proceeding that have previously been adjudicated, therefore, cannot be successfully invoked in this action by the defendants Laneri and Brownell. There remains, however, the issue of whether the boundary issue could and should have been raised in the earlier proceeding . . . Application of this test is informed by the general rule that "[a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose." Id. at 295 (emphasis in original).

This matter, as previously noted, is a quiet title action in which the plaintiff seeks a determination of the boundary line between his and the Laneri property while the previous matter sought a declaration that Brownell's easement had been extinguished. The present action, although involving much of the same evidence as presented in the first proceeding, does not arise out of the "same factual grouping" that formed the basis of the claims in the first action. Accordingly, the claim in this case is not barred by res judicata.

Id., 13337-38 (footnote omitted).
The defendants also claimed that the plaintiff's submission of the Bonoff surveys in the prior case constituted evidentiary admissions that are binding in this case. Judge Holzberg disagreed:

Defendants argue that the evidence submitted by the plaintiff in the first proceeding conclusively establishes the boundary line between the Mierzejewski and Laneri properties. Specifically, defendants point out that the maps prepared by plaintiff's expert and admitted in the first action identify the precise boundary between northern edge of the Mierzejewski property and southern edge of the Laneri property. Under these circumstances, defendants argue that those maps constitute admissions binding on the plaintiff prohibiting him from now contradicting the boundary established by his expert's survey. Assuming that the maps admitted in the first proceeding constitute an admission by the plaintiff; see, Falker v. S[amperi], 190 Conn. 412 (1983); and they are deemed to be judicial not merely evidentiary admissions, "[j]udicial admissions are conclusive only in the judicial proceeding in which made. In subsequent proceedings such prior judicial admissions are merely evidentiary admissions, to be used as evidence to prove a matter in dispute in the subsequent trial" (quotations and citations omitted). Tait's Handbook of Connecticut Evidence, 3d Ed. § 8.16.3. Accordingly, the evidentiary force of the maps utilized at the first proceeding are not conclusive in the present case.[2]

Id., 13338.
In footnote 2, Judge Holzberg set forth the following:

Although the maps prepared and offered by the plaintiff in the first proceeding are not conclusive in the present case, it seems apparent that the plaintiff faces a significant if not overwhelming evidentiary burden in proving that border between the two properties is different than that located by his own expert and identified by him in the Brownell case. See, e.g., General Statutes § 7-31 and McBurney v. Cirillo, 276 Conn. 782 (2006).

General Statutes § 7-31 provides in part:

When any person having an interest in land has caused it to be surveyed and plotted or laid out into lots and projected highways, and a map made, which map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon, and when such projected highways have been approved by the municipal authorities empowered to approve the layout of highways, the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed a part of the deeds referring thereto, and may be produced in court accordingly . . .

In McBurney v. Cirillo, 276 Conn. 782, 798-811, 889 A.2d 759 (2006), the Supreme Court held that the recording of a development plan in the Branford town clerk's office and the specific reference to it in the plaintiffs' chain of title and in other deeds created an implied easement in favor of the defendants over the plaintiffs' property to Long Island Sound. There was language in the deeds in the plaintiffs' chain of title that was sufficient to refer to a specific map, and the development plan contents was sufficient to create an implied easement and additionally, the implied easement, having been created by the recording of the development plan, was mentioned in each deed that comprised the plaintiffs' chain of title.
The Laneri "Homestead" parcel: On February 23, 1864, by warranty deed Staunton S. Card and Edward P. Brownell of East Haddam conveyed what is now the Laneri "Homestead" or "front lot" real property to Benjamin H. Tillinghast as follows:

Know Ye That We Staunton S. Card and Edward P. Brownell of East Haddam Middlesex County and State of Connecticut for the consideration of Four Hundred Dollars, received to our full satisfaction of Benjamin H. Tillinghast of said Town County and State Do give, grant, bargain, sell and confirm unto the said Benjamin H. Tillinghast one piece parcel or tract of land lying in and being situated in East Haddam in Middlesex County and bounded and described as follows, to wit, Northerly by land of Warren C. Spencer, Easterly and Southerly by highway and Westerly by land now or lately owned by Ambrose D. Spencer. Containing Two acres more or less with the buildings standing thereon.

On March 31, 1866, the highway referred to in such deed was formally abandoned by such town, and it eventually became known as the "old highway."
The following transactions are also in the Laneri chain of title for the "Homestead" parcel:
1. On December 15, 1866, by warranty deed Benjamin H. Tillinghast of East Haddam conveyed such real property to Ferdinand Steele (or Steel). Such property was described in such deed as being bounded northerly by land of Theodosic [?] Spencer, east and south "by Highway," and west by land occupied by Mrs. Harriet Andrews.
2. On August 20, 1880, by warranty deed Ferdinand Steele conveyed such real property to Phoebe A. Potter. Such property was described in such deed as being bounded northerly by land of Abner Hurd, east and south "by [] Highway," and west by land occupied by Harriet Andrews.
3. After Phoebe A. Potter died intestate, the probate court for the district of East Haddam, on October 30, 1907, distributed to Charles Potter and to Elizabeth Potter Harris an undivided one-half interest in such real property, the bounds of which were set forth as follows:

. . . Northerly by land of Abner Hurd

Easterly by the Highway [now Bashan Road]

Southerly by an old highway and

Westerly by land owned or occupied by David L. Crackley . . .

4. On October 30, 1909, by warranty deed Elizabeth Potter Harris conveyed her undivided one-half interest to Charles Potter and the same property description was set forth in the deed of conveyance.
5. On February 10, 1914, by warranty deed Charles Potter conveyed such real property to C. Theodore Sauer with the following property description:

. . . Northerly by land of Abner Hurd

Easterly by the Highway [now Bashan Road]

Southerly by an old highway and

Westerly by land owned by C. T. Sauer . . .

Between 1914 and 1922 Theodore Sauer owned, inter alia:
(A) what is now the Laneri "Homestead" or "front" parcel located north of a portion of the Mierzejewski parcel;
(B) what is now the Mierzejewski parcel a portion of which located south of Laneri "Homestead" parcel;
(C) what is now the Laneri "back" or "wood" parcel located to the west of the "Homestead" parcel and north of a portion of the Mierzejewski parcel; and
(D) what is now the Crary Brownell parcel located to the west of the Mierzejewski parcel. Thus Theodore Sauer owned the property over which the old highway had passed, e. g., twenty feet along the northern boundary of what is now the Mierzejewski parcel and immediately below the southern boundary of both Laneri parcels, and he owned both Laneri parcels bounding such old highway on the north.
6. On May 3, 1922, the estate of C. Theodore Sauer conveyed the Laneri "Homestead" parcel to William H. Robinson pursuant to the following description:

. . . Northerly by land of Abner Hurd

Easterly by the Highway [now Bashan Road]

Southerly by an old highway and

Westerly by land of C. T. Sauer . . .

7. On August 8, 1949, the estate of William H. Robinson conveyed an undivided one-third interest in such property to Bertha T. Robinson, to Cornelia R. Gentry and to Joan E. Robinson, and the boundaries of such property were set forth as follows:

The homestead so-called, bounded

Northerly by land of Thomas E. and Emma Dolan;

Easterly by the Highway known as Bashan Road;

Southerly by land of the Moodus Reservoir Company, Incorporated and land of Constance Cuthbertson, partly by each and

Westerly by land of the said Constance Cuthbertson . . .

8. On August 22, 1949, by quit claim deed setting forth the description of the property in the August 8, 1949, deed, Cornelia R. Gentry conveyed her undivided one-third interest in the Laneri "Homestead" parcel to Bertha T. Robinson.
9. On November 28, 1952, by quit claim deed generally setting forth the description of the property in the August 8, 1949, deed, Joan E. Robinson conveyed her undivided one-third interest in the Laneri "Homestead" parcel to Bertha T. Robinson.
10. On July 6, 1973, by warranty deed Bertha T. Robinson conveyed such property to Dana C. Hewson, and the boundaries of such property were set forth as follows:

The Homestead, so-called, bounded:

NORTHERLY: by land of the East Haddam Fish and Game Club;

EASTERLY: by the Highway, Bashan Road, so-called;

SOUTHERLY: by land of the State of Connecticut, Bashan Lake so-called, and land of Arthur and Lillian M. Foreman, partly by each; and

WESTERLY: by land of said Foreman . . .

11. Utilizing the same boundary description, on March 1, 1974, Dana C. Hewson conveyed such property to Sara Ann W. Hewson and himself.
12. Also utilizing the same boundary description, on March 2, 1978, Dana C. Hewson and Sara Ann Hewson conveyed such real property to Robert J. Laneri and Janice M. Laneri, the current owners.
In none of the foregoing deeds is there any use or mention of the center line of the "old highway" as the southern boundary of such parcel. Compare, Highstead Foundation, Inc. v. Fahan, 105 Conn.App. 754, 760, 941 A.2d 341 (2008) ("Third, the 1986 deed states that the easterly boundary of the property being conveyed is the center line of the wood road that "bisects" the tract as conveyed to the grantor in 1951. The court noted that the term "bisect," as defined in Webster's Third New International Dictionary, generally means to divide in two equal parts"), and see Bergan v. Lundgren, 2004 Ct.Sup. 13021, No. CV-02 0099396 S, Superior Court, Judicial District of Middlesex Complex Litigation Docket at Middletown (Walsh, J., August 31, 2004).
Although a stone wall, a very visible "monument," runs along the southern boundary of the Laneri "Homestead" parcel (and along the Laneri "back" parcel) north of the abandoned "old highway," no deed in the Laneri "Homestead" parcel chain of title refers to such stone wall.
The Mierzejewski parcel: CT Page 5537 On April 18, 1908, C. Theodore Sauer acquired two parcels of real property estimated to contain approximately sixteen acres, a portion of which property was adjacent to the southern and western boundaries of the Laneri "Homestead" parcel. On March 23, 1923, the East Haddam Probate Court approved the conveyance of title to each such piece to Constance Sauer. On September 13, 1924, Constance Sauer conveyed title to each such piece to Georgiana R. Sauer. On February 2, 1939, the East Haddam Probate Court certified that such parcels, then estimated to contain approximately 13.2 acres, had been conveyed to Constance Sauer Cuthbertson. On September 25, 1958, Constance Sauer Cuthbertson conveyed such parcels to Arthur and Lillian M. Foreman.
On October 8, 1958, Arthur and Lillian M. Foreman conveyed a portion of the parcels to Nathan and Crary Brownell, ancestors of the current owner of such Brownell parcel. The deed included the following right of way in part over the Mierzejewski property:

Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 12.1 feet of the granted premises where the right of way turns Southerly from said old highway and enters upon the granted premises. Said right of way shall be 20 feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises.

This right of way is described beginning on the eastern boundary of the Mierzejewski property and running generally southwesterly to a point where it turns off of the old highway bed southerly to the Brownell parcel. As described by Judge Aurigemma, it runs in the bed of the old highway that although abandoned in 1866 was visible in 1958 and is visible today according to the testimony of witnesses during the trial.
On August 8, 1986, Arthur and Lillian M. Foreman conveyed the Mierzejewski parcel to Norbert Pomeranz. The property description was as follows:

All that certain piece or parcel of land situated at Lake Bashan in the Town of East Haddam, County of Middlesex and State of Connecticut, bounded and described as follows, to wit:

CT Page 5538

Bounded northerly by lands of William H. Robinson and Joseph and Emma Budka, partly by each;

Easterly by the highway and lands of the said William H. Robinson, The East Haddam Fishing and Game Club, Incorporated and by Bashan Lake, so-called, partly by each;

Southerly by said Bashan Lake; and

Westerly by land of Harry I. and Blanche B. Cross and said Bashan Lake, partly by each,

containing by estimation Thirteen and Two-tenths (13.2) acres be the same more or less with a dwelling house and other buildings thereon standing, or however otherwise bounded and described as of record will appear.

Being all of the same premises conveyed to Arthur and Lillian M. Foreman by warranty Deed from Constance Sauer Cuthbertson dated 9/25/58 and recorded in Volume 72, Page 435 of the East Haddam Land Records, excepting therefrom the following:

1. Warranty deed from Arthur and Lillian K. Foreman to Nathan and Crary Brownell dated 10/8/58 and recorded in Volume 72, Page 436 of the East Haddam Land Records.

2. Warranty Deed from Arthur and Lillian K. Foreman to George W. and Debra F. Corbeil dated 8/17/84 and recorded in Volume 189, Page 252 of the East Haddam Land Records; and

3. Warranty Deed from Arthur and Lillian K. Forman to Robert J. and Janice M. Laneri dated on even date herewith and recorded in the East Haddam Land Records [conveying the so-called back parcel] next preceding the Warranty Deed from Arthur and Lillian K. Foreman to Norbert Pomeranz of even date herewith.

In addition to being set forth in the 1958 deed to Nathan and Crary Brownell referred to in paragraph 1 above, although the 1958 Campbell modification to the 1950 Cuthbertson map delineating such right of way is not mentioned, the Brownell right of way was possibly also referenced in such deed by the following:

Said premises are further subject to all easements and rights of way on a certain unrecorded map entitled "MAP SHOWING PROPERTY OF CONSTANCE S. CUTHBERTSON EAST HADDAM CONN. March, 1950 — Scale — 1" = 50'," certified substantially correct by Lawrence E. Gitchell, Registered Land Surveyor Conn. 2786, and as of record may appear.

Utilizing essentially the same property description, on April 1, 1991, Norbert Pomeranz conveyed such real property to Ronald L. Swan and Karoline A. Swan. Although the 1958 Campbell modification to the map delineating the right of way is again not mentioned, the Brownell right of way was possibly also referenced in such deed by the following:

Said premises are subject to all easements and rights of way on a certain map to be recorded entitled "MAP SHOWING PROPERTY OF CONSTANCE S. CUTHBERTSON EAST HADDAM CONN. March 1950 — Scale — 1" = 50'," certified substantially correct by Lawrence E. Gitchell, Registered Land Surveyor Conn. 2786, and as of record may appear.

Utilizing essentially the same property description, on June 21, 1994, Ronald L. Swan and Karoline A. Swan conveyed such real property to Charles D. Mierzejewski. In the warranty deed the Brownell right of way was referred at least once and possibly twice as follows:

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3. Said premises are subject to all easements and rights of way on a certain map entitled "MAP SHOWING PROPERTY OF CONSTANCE S. CUTHBERTSON EAST HADDAM CONN. March 1950 — Scale 1" = 50'" certified substantially correct by Lawrence E. Gitchell, Registered Land Surveyor Conn, 2736.

4. Right of way described in a Warranty Deed from Arthur Foreman and Lillian M. Foreman to Nathan Brownell and Crary Brownell dated October 8, 1958 and recorded in Volume 72 at Page 436 of the East Haddam Land Records.

The genesis of the claim that the Laneri "Homestead" parcel's southern boundary is the center line of the "old highway" that was formally abandoned in 1866 is above referenced "Cuthbertson" map, referred to above in the deeds as "MAP SHOWING PROPERTY OF CONSTANCE S. CUTHBERTSON EAST HADDAM CONN. March. 1950 — Scale — 1" = 50'," certified substantially correct by Lawrence E. Gitchell, Registered Land Surveyor Conn. 2786. However, no evidence was presented to the court about when and by whom such center line was identified and placed on such map. Such map was supplemented in 1958 by a surveyor named Campbell. It was not recorded on the land records until 1991, 41 years after 1950 and 33 years after 1958.
In October 1958 surveyor Campbell depicted the right of way described in the contemporaneous Foreman deed to Brownell (see page 21, supra) completely in the bed of the old highway and in relevant part over the part of such old highway north of the center line as it passed to the south of the Laneri "Homestead" parcel. (Exhibit 6.) Although there are no notes affixed to such map, surveyor Campbell and the Foremans acted as if the note on the Cuthbertson/Campbell map referring to such center line as the property line did not exist or was not accurate. The Bonoff survey prepared in 2003 for Mr. Mierzejewski (exhibit 7) is a dependent resurvey of the Cuthbertson map as revised by surveyor Campbell. Mr. Bonoff also depicted the right of way described in such Foreman deed to Brownell completely in the bed of the old highway and in relevant part over the part of such old highway north of the center line as it passed to the south of the Laneri "Homestead" parcel. Because it was not relevant to the work he performed in 2005 for the Laneris, Mr. Bonoff did not depict the Brownell right of way on that survey. (Exhibit 8.) Mr. Bonoff did, however, depict the fence on the easterly boundary of the Mierzejewski property line across the old highway to the stone wall. Id.
Additionally, the Davies map (exhibit 5) prepared at the request of and paid for by the Laneris to satisfy the requirements of Burritt Mutual Savings Bank, their mortgagee for the "Homstead" parcel, depicts the southern boundary of such parcel as the ancient stone wall and not the center line of the old highway, which is not depicted on such map. Also, the 1986 Centroplex/McMinn preliminary map (exhibit 4) prepared for the Laneris depicts the southern boundary of such parcel as the ancient stone wall and not the center line of the old highway, which is not depicted on such map. To the east of the eastern boundary of the Mierzejewski parcel and north of the Moodus Reservoir/State of Connecticut parcel, both such maps clearly show an approximately ten-foot jog to the south of the Laneris' property line to the center of the old highway. As noted elsewhere in this decision, neither of such properties was in common ownership after the abandonment of such old highway on March 31, 1866.
The trial Attorney Harvey, qualified as an expert in titles, opined that if the Laneri predecessors in title, William Robinson and his successors, owned to the center line of the abandoned "old highway," then the Foremans could not have granted to Brownell the right of way over the bed of the "old highway." He also opined that the placement in the 1950 Cuthbertson map of the southern boundary of the Sauer/Robinson/Laneri "Homestead" property at the center line of such "old highway" was not supported by any of the deeds in the chain of title. He stated that if such boundary placement was in fact correct, the Brownell right of way would have to be ten feet south of the bed of the old highway as it passed the Laneri "Homestead" parcel.
In support of his opinion that the presumption of ownership to the center line had been rebutted, Attorney Harvey referred to the doctrine of merger after the consolidation of abutting properties into common ownership, and the elimination after such common ownership of such presumption. He also stated that the 1922 conveyance from Sauer to Robinson of what is now the Laneri "Homestead" parcel did not make reference to the center line of the abandoned "old highway." His analysis of the title history convinced him that at no time after 1866 did any grantor of the Laneri "Homestead" parcel intend for the southern boundary to extend to the center line of the abandoned "old highway." He also stated that the Brownell deeded right of way as it passed to the south of the Laneri "Homestead" parcel was within the bed of the abandoned "old highway," and that the abandoned "old highway" and the Brownell right of way are located within the Mierzejewski parcel. He also stated that if the southern boundary of the Laneri "Homestead" parcel was the center line of the abandoned "old highway" in the 1922 conveyance from the common grantor, Sauer, to Robinson, Sauer or his representative(s) since he was deceased would have reserved to himself/themselves passage over the northern ten-foot portion of such abandoned "old highway" to Bashan Road.
Attorney Harvey also opined that although it was not mentioned in any of the deeds in the chain of title of the Laneri "Homestead" parcel, the stone wall on such southern boundary delineated such boundary line. Such stone wall was an "ancient" stone wall.
John Conklin was qualified as an expert in land surveying. After an extensive review, he concluded that the boundary along the stone wall on the north side of the abandoned "old highway" was the southerly boundary of the Laneri "Homestead" parcel. He described such stone wall as "ancient." He observed the "actual physical presence" of the old highway that remained "obvious" in places. He noted the prior common ownership of both parcels by C. Theodore Sauer and referred to prior (but not all) survey maps including those prepared for the Laneri defendants that recognized such stone wall as the boundary between the Laneri and Mierzejewski parcels. He also noted that there had been no apparent use by the Laneri defendants of any part of the northerly ten feet of the abandoned "old highway," and that the deed to the Laneri defendants contains no reference to such highway. He further noted that the stone pillars and fence on the east boundary of the Mirzejewski property that were in place before 1958 or 1963 extend to such stone wall. Also, when Mr. Pomeranz installed the above ground septic system in 1986 in part in the northerly portion of the "old highway" beyond the center line and used the stone wall as a retaining wall, the Laneri defendants took no action. His view was that the right of way described in the 1958 deed from Arthur and Lillian Foreman to Nathan and Crary Brownell could be in only one place, the abandoned "old highway" that in 2009 still remained visible and that was bounded by the "ancient" stone wall. Additionally, although he could not find any evidence of an easement from the Laneri defendants or their predecessors, three telephone poles above the center line of the highway in the area claimed by the Laneri defendants serve the Mierzejewski property (there was no evidence presented concerning when they were installed). He disagreed with the 1950 Cuthbertson map and the two Bonoff maps insofar as each showed the center line of the abandoned "old highway" as the southerly boundary of the Laneri property. He found no reference in either the Mierzejewski or Laneri chains of title referring to the center line of the abandoned "old highway" as the southerly boundary of the Laneri property.
Mr. Conklin testifed that if the common law presumption of ownership to the center line of an abandoned highway was applied after 1866, it no longer existed after the properties were under common ownership between 1914 and 1922.
Deborah Corbeil, the daughter of Arthur and Lillian Foreman, testified about the property owned by her parents. She currently resides with her husband on a parcel to the north of the Laneri "Homestead" parcel. She recalled the stone walls, fences and other boundary identification that existed when her recollections began in 1963, including the gate across and stone pillars on each side of the driveway to what is now the Mierzejewski parcel and the fence across the abandoned "old highway." Fencing or other barriers were required around the entire property because they kept horses on the property. There was a wire fence on the stone wall. In 1986 she observed the construction for Mr. Pomeranz of the new septic system to the south of the stone wall above the abandoned "old highway."
Mr. Mierzejewski testified that his understanding when he purchased the property was that the boundary line between his property and the Laneri "Homestead" parcel was the stone wall north of the abandoned "old highway." He disagreed with Mr. Bonoff's placement of the boundary on the center line of such highway approximately ten feet to the south of such stone wall. He stated that Mr. Bonoff declined to change his map, and despite that refusal, Mr. Mierzejewski used such map in his proceeding against Mr. Brownell.
Mr. Laneri, a civil engineer, testified that in 1978 he and his spouse Janice Laneri purchased the "Homestead" parcel and in 1986 they purchased the "back" parcel, both of which they owned at trial. He claimed that Mr. Mierzejewski never said to him that the disputed boundary was other than that shown on the two Bonoff maps. He acknowledged that he observed the construction of the septic system and that the stone wall is the retaining wall for the septic system. Mr. Pomeranz was receiving six or seven loads of fill daily to cover the above ground septic tank. Mr. Laneri asserted that the boundary between his "Homestead" parcel and the Mierzejewski parcel was the center line of the abandoned "old highway." He claimed that the Pomeranz/Mierzejewski septic system is on his property above the center line and negatively impacts it.
Robert Laneri asserted that his assumption was that the boundary line between his property and that of the State of Connecticut which was beyond the stone wall continued as the boundary line between his "Homestead" parcel and the Mierzejewski parcel. He accepted the Bonoff maps as accurate but not the earlier maps prepared for him by surveyor McMinn in 1986 in connection with the "back parcel," and by surveyor Davies in 1978 in connection with the "Homestead" parcel. (As set forth above, these maps showed the property line between his parcels and the Mierzejewski parcel as the ancient stone wall.)
On April 30, 2008, he observed the defendant Brownell move the pipes between the pillars in the abandoned "old highway" and he reported that to the police when they arrived.
Janice Laneri testified about social contact with Mr. and Ms. Mierzejewski and how she learned about the pending suit. She also testified about her medical issues and her belief that the litigation had exacerbated them, and the alleged negative financial effect of the lis pendens filed by the plaintiff in connection with the suit on the value of both parcels.
Mr. Brownell testified about his use of the right of way and his attempt to sell his property.
Mr. Bonoff testified about his work for Mr. Mierzejewski in 2003. His work was a dependent resurvey of the Cuthbertson survey. He said that the Cuthbertson survey recognized a point of law that when a public road was abandoned, the land under the road was divided between the adjoining landowners. He utilized his 2003 work and made other measurements when in 2005 he prepared a map of the Laneri properties. In the Cuthbertson map there was no written explanation about how he determined that the center line was the boundary after the period of common ownership. There were no written dimensions on the center line as to bearing and distance but those dimensions were set forth with respect to the stone wall. He examined the title chain back to the conveyance of what eventually became the Mierzejewski parcel by Georgiana Sauer to Constance Sauer in 1922. He also examined the Laneri title chain back to the conveyance by Georgiana Sauer to William H. Robinson in 1922. He observed that on the east boundary of the Mierzejewski parcel a fence of stone pillars connected by pipe runs to the stone wall and there is a fence pillar adjacent to such stone wall. He was familiar with the grant of the right of way in the deed from Arthur and Lillian Foreman to Nathan and Crary Brownell, the predecessors in interest of the defendant Crary Brownell, as follows:

Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 12.1 feet of the granted premises where the right of way turns Southerly from said old highway and enters upon the granted premises. Said right of way shall be 20 feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises.

(Emphasis supplied.) He admitted that the described right of way was exclusively in the bed of the old highway between the stone wall running along both the "Homestead" and the "back" Laneri parcels and that in the deed description the southerly line of the old highway was twenty feet south of such stone wall. He also acknowledged that the McMinn map showed the southern boundary of the Laneri "Homestead" parcel as the stone wall. On December 22, 2009, he saw the Davies map for the first time and he acknowledged that it also identifies the stone wall as such southern boundary. Both the McMinn and Davies maps identify an iron pipe or pin at the intersection of the stone wall on the southern boundary and the stone wall on the boundary between the "Homestead" and "back" parcels. The Davies map was the result of a field survey. He also admitted that none of the deeds in either chain of title refer to the center line of the old highway as a boundary line.
Roger Nemergut, a civil engineer with an expertise in septic systems, testified that he had observed the Mierzejewski septic system approximately six times during 2008 and that he saw no evidence of effluent breakout. He also stated that all permits had been granted for the new septic system in a new location outside of the bed of the old highway.
Adele Mierzejewski, the spouse of Charles Mierzejewski, testified about their social contact with Mr. and Ms. Laneri and its deterioration before the current suit was instituted.
Attorney Terrance D. Lomme testified that he had appeared in the first case as an expert witness for the defendant Brownell. He had reviewed information concerning the properties back to 1907 or 1908. Between 1914 and 1922, C. Theodore Sauer was a common owner of the property in the Laneri and Mierzejewski chains of title. In 1922 the parcel that became the Laneri "Homestead" parcel was conveyed to William Robinson and the parcel that included the Mierzejewski and the Brownell properties was conveyed to Constance Sauer. The remaining property of C. Theodore Sauer, who had died intestate, was also conveyed. Attorney Lomme stated that he believed that the right of way was correctly set forth in exhibit 3, and thus after it passed below the southerly boundary marked by the stone wall on the Laneri "back parcel," it "jogged" approximately ten feet to the south to pass below the center line of the old highway below the Laneri "Homestead" parcel.
In addition to the deeds in the Mierzejewski and Laneri chains of title, the court reviewed several maps that were admitted as full exhibits, some of which have been referred to above:
Exhibit 1 is tax map 57 of the Town of East Haddam admitted as an exhibit for the purpose of identifying and placing the parcels referred to during the trial.
Exhibit 2 is an unrecorded perimeter survey prepared by Conklin Soroka, Inc., depicting a portion of the property line between land of Robert J. and Janice M. Laneri and land of Charles D. Mierzejewski. This map depicts the Brownell right of way based on Mr. Conklin's determination of the location of the southern boundary line of the Laneri "Homestead" parcel and of the Brownell right of way over the Mierzejewski parcel.
Exhibit 3 is an unrecorded perimeter survey prepared by Conklin Soroka, Inc., depicting a portion of the property line between land of Robert J. and Janice M. Laneri and land of Charles D. Mierzejewski. This map depicts the Brownell right of way based on the Laneri claim of ownership to the center point of the "old highway."
Exhibit 4 is a preliminary map prepared for Robert and Janice Laneri. This map, denominated 1665, was prepared by Centroplex in 1986. This is also referred to as the "McMinn map."
Exhibit 5 is an unrecorded map prepared by A. Bowen Davies Co. in 1978 for Robert J. and Janice M. Laneri in connection with obtaining a mortgage on the "Homestead" parcel.
Exhibit 6 is entitled "Map showing property of Constance S. Cuthbertson, East Haddam, Connecticut, March 1950, Scale 1" = 50,' Lawrence E. Gitchell, Registered Land Surveyor as amended by a map showing dividing line certified by Carroll A. Campbell, Registered Land Surveyor and C.E., Middletown, Connecticut, October 1958." This map, denominated 2442, was filed in 1991.
Exhibit 7 is the first map prepared by Mr. Bonoff of Swamp Yankee Survey, LLC. This map, denominated 3578, was prepared for Charles Mierzejewski in 2003.
Exhibit 8 is the second map prepared by Mr. Bonoff of Swamp Yankee Survey, LLC. This map, denominated 3869, was prepared for Robert and Janice Laneri in 2005.
Exhibit 9 is map 554, a plan made in 1967 for the State of Connecticut of Bashan Lake.
Exhibit 10 is a plan made in 1967 for the State of Connecticut of the dam site at Bashan Lake.
Exhibit 11 is a Town of East Haddam Assesssor's map from 1990.
Exhibit 12 is a map from 1874.
Additionally, the court was provided with a number of photographs of the properties.
In addition to the references to common ownership by C. Theodore Sauer from 1914 through 1922, the parties and at least one witness referred to the doctrine of merger. Such concept has been explained as follows in Laurel Beach Assn v. Zonong Board of Appeals, 66 Conn.App. 640, 654-55, 785 A.2d 1169 (2001):

The owner's intent under the common law to merge lots is inferred from his or her conduct with respect to the land and the use made of it. Molic v. Zoning Board of Appeals, supra, 18 Conn.App. 164. No single factor is dispositive. See Marino v. Zoning Board of Appeals, 22 Conn.App. 606, 610, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990), citing Molic v. Zoning Board of Appeals, supra, 164. Thus, there is no merger simply because the tracts are taxed as one or even because the owner fails to take any actions physically to demonstrate that he desires to keep them separate. Id.; see also Schultz v. Zoning Board of Appeals, 144 Conn. 332, 337, 130 A.2d 789 (1957) (zoning board found no merger even though property "never, in the chain of title up to the time of its conveyance to the plaintiff, been transferred as a separate lot and had never been assessed as such for taxation"). Those factors may, however, be considered probative by a zoning board in making its determination whether the properties have been merged. Marino v. Zoning Board of Appeals, supra, 609.

Generally, merger is found where the adjacent tracts have been used as a single property over a long period, even where the deed description references multiple lots from a map filed in the land records. See, e.g., id. (upholding zoning board determination that merger occurred where property was developed in 1920 as single parcel and used that way since); Neumann v. Zoning Board of Appeals, supra, 14 Conn.App. 57-58 (upholding zoning board determination of merger where separate houses on adjacent lots had been used as single parcel since 1953). The mere intent to develop the lots as a single property, however, does not automatically trigger the merger doctrine where the plan is rejected by the town; a developer could then submit plans to use the properties as separate lots. Carbone v. Vigliotti, 222 Conn. 216, 227-28, 610 A.2d 565 (1992). Once two lots have merged, the merged lot cannot be redivided. Iannucci v. Zoning Board of Appeals, 25 Conn.App. 85, 90, 592 A.2d 970 (1991).

At the municipality level, only the zoning board of appeals has the authority to determine whether merger has occurred. Id., 88 (rejecting trial court conclusion that building inspector's issuance of permit to move house meant defendant town abandoned its merger finding).

The application of the merger doctrine does not seem useful in determining any of the issues before the court.
Although it was not accepted by the court in the decision set forth below, the presumption of ownership to the middle of a highway after it is abandoned is rebuttable:
2. Title Claims

Under our law, there is a rebuttable presumption that the land owners whose lands abut the highway continue to be the owners of the soil to the middle of the highway after abandonment. See Luf v. Southbury, 188 Conn. 336, 341 (1982).

The court finds that the testimony of Attorney Lars Edeen, that the property of both parties abuts the strip in question, the plaintiff on west, and the defendants on the east, to be persuasive and based on a through title examination. In considering Attorney Edeen's testimony, the court has weighed his experience, his expertise, his thoroughness, as well as the reasonableness of his opinions and the facts upon which he based those opinions. The court finds that the evidence supporting that opinion is the weightier, more convincing, more persuasive and better evidence.

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5. Orders

The court quiets title to the strip of land in question by declaring that the plaintiff, Gail F. Bergan, owner of 39 Hickory Lane, Haddam, Connecticut, and the defendants, Mark P. Lundgren and Kathleen M. Lundgren, owners of 40 Hickory Lane, Haddam, Connecticut, each own in fee to the center line of a strip of land between their homes approximately 595 feet long and 32 feet wide; the plaintiff's half being the western half and the defendants' half being the eastern half.

Both of the above-described fee interests are subject to the Right of Way Agreement set forth in Vol. 78, Page 160 of the Haddam Land Records.

No attorneys fees are awarded.

Judgment may enter accordingly.

Berigan v. Lundgren, 2004 Ct.Sup. 13021, 13028, 13031, No. CV-02 0099396 S, Superior Court, Judicial District of Middlesex Complex Litigation Docket at Middletown (Walsh, J., August 31, 2004).
In Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-57, 114 A.2d 216 (1955), the Supreme Court recognized such presumption where "no evidence [is] offered to the contrary . . ."

The plaintiffs also maintain that the cemetery cannot be increased in size by the use of land, acquired for the purpose, on the opposite side of a public highway. An abutting owner is presumed under the law of this state, no evidence having been offered to the contrary, to own the fee of the land to the center of the highway. Therefore, as to the land within the limits of the highway, an abutting owner has all rights not incompatible with the public easement. Allen v. Mussen, 129 Conn. 151, 155, 26 A.2d 776; State v. Muolo, 119 Conn. 323, 326, 176 A. 401. "A highway is nothing but an easement, comprehending merely the right of all the individuals in the community to pass and repass, with the incidental right in the public to do all of the acts necessary to keep it in repair." Peck v. Smith, 1 Conn. 103, 132; Newton v. New York, N.H. H.R. Co., 72 Conn. 420, 426, 44 A. 813. The easement in the public does not comprehend any interest in the soil or give the public the legal possession of it. The right of freehold is not touched by establishing a highway. It continues in the original owner of the land in the same manner as before the highway was established, subject to the easement. Peck v. Smith, supra. The adjoining proprietors have a right to every use and profit which can be derived from it consistent with the easement. The soil of a high-way descends to heirs and passes to grantees as an appurtenant to the land adjoining, and whenever the highway is discontinued, the adjoining proprietors hold the land discharged of the easement. Knothe v. Zinzer, 96 Conn. 709, 713, 115 A. 477; Peck v. Smith, supra, 146.

As the defendant is regarded by law as the owner of the entire existing cemetery and holds the legal title to the Hubbard Farm, which has a frontage of about 450 feet opposite the cemetery, it is also regarded as the owner of that portion of the land in the highway, about 450 feet in length, contiguous to both the cemetery and the Hubbard Farm. It has, by reason of that ownership, privileges in the highway which are not common to the public generally. Newton v. New York, N.H. H.R. Co., supra, 427 . . . The fact that the Hubbard Farm is not contiguous to the existing cemetery is of no consequence in this case, since the defendant is regarded as the owner of the intervenient land, subject to the easement. The proposed use of the Hubbard Farm can properly be regarded as the "extension of an existing cemetery," a permitted use, and the defendant may proceed to use the Hubbard Farm under the certificate issued by the building inspector.

See also Allen v. Mussen, 129 Conn. 151, 155, 26 A.2d 776 (1942), and General Dynamics Corp. v. Groton, 184 Conn. 483, 494-95, 440 A.2d 185 (1981):

Whatever the width of Eastern Point Road, the effect of the current judicial proceedings is solely to extinguish the public easement originally established in 1869 and thereafter increased in some manner whose legality is not presently at issue. The plaintiff, as the abutting landowner on both sides of the road, is presumed to own the fee to the road. Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355, 114 A.2d 216 (1955). The defendant city has acquiesced in the discontinuance. The court therefore had jurisdiction, by the discontinuance of Eastern Point Road, to extinguish the public easement therein. Peck v. Smith, 1 Conn. 103, 132 (1814); 11 McQuillin, Municipal Corporations (3d Ed. Rev. 1977) 30.202.

Thus, when C. Theodore Sauer owned what are now the Mierzejewski and the Laneri parcels between 1914 and 1922, he was "also regarded as the owner of that portion of the land in the highway . . . contiguous to . . ." those parcels and he was ". . . presumed to own the fee to the road . . ."
As previously set forth, such presumption is rebuttable and was rebutted in Shelton Square Limited Partnership v. Shelton Planning Zoning Commission, 1991 Ct.Sup. 3415, 3416-17, No. CV90 03 36 52S, Superior Court, Judicial District of Ansonia-Milford at Milford (Fuller, J., April 24, 1991) [ 4 Conn. L. Rptr. 13]:

The plaintiff claims standing based on both statutory aggrievement and "classical aggrievement." The subject property and the plaintiff's property are on opposite sides of Bridgeport Avenue. When computing the statutory distance where a road intervenes between two properties, consideration must be given to whether the appellant owns to the center line of the road. Fuller v. Planning and Zoning Commission, 21 Conn.App. 340, 345. In the absence of evidence to the contrary, there is a presumption that owners of land abutting a public highway own to the center line of the road, subject to the easement for public travel. Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355. There was evidence in this case that the state owns the 155 wide right of way to Bridgeport Avenue. When the state acquires property for a public highway, it obtains a fee simple interest. Section 13a-73(b) C.G.S.

In Berger v. Guilford, 136 Conn. 71, 77, 68 A.2d 371 (1949), the Supreme Court took note of the presumption of ownership to the middle of an abandoned highway and stated that it was "merely a presumption" rebutted by proof of ownership in one person of the fee to the entire highway:

A highway is merely an easement for travel by the public with the incidental right in the party bound to maintain it to do anything within its limits necessary for adapting and maintaining it for that use. Arborio v. Hartford Electric Light Co., 130 Conn. 592, 597, 36 A.2d 384. The defendant further contends that the referee should have applied the rule that, where private owners own on both sides, each is presumed to own the fee to the middle of the highway. That is, however, merely a presumption; Allen v. Mussen, 129 Conn. 151, 155, 26 A.2d 776; and the title to the fee of the entire highway may be proved to be in one person. Watrous v. Southworth, 5 Conn. 305, 310.

In Seery v. Waterbury, 82 Conn. 567, 570, 74 A. 908 (1909), what was at issue was not access to or ownership of a highway but to a private passageway, but the Supreme Court stated that another basis for rejecting the presumption of ownership by abutters to the center line of an abandoned highway was if the land for such highway originally had been granted by a single proprietor:

In respect to highways, the rule in Connecticut is well established that abutting proprietors presumptively own the fee of the soil under that half of the road which is contiguous to their lands. This is founded on a presumption that the land covered by the highway was originally granted by the adjoining owners in equal proportions. Where it appears that it was all granted by a single proprietor, this presumption is rebutted. His laying a servitude upon it cannot transfer a title to the fee. Watrous v. Southworth, 5 Conn. 305, 310.

The plaintiff's action to quiet title is brought pursuant to General Statutes § 47-31 entitled "Action to settle title or claim interest in real or personal property;"

(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, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.

(b) The complaint in such action shall describe the property in question and state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest . . .

(d) Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived . . .

(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.

General Statutes § 47-31 has been explained in Koenicke v. Maiorano, 43 Conn.App. 1, 9-12, 682 A.2d 1046 (1996), and such decision also contains a discussion of the importance of monuments such as stone walls as in this case in determining boundary issues:

All actions to determine record title of any interest in real property are governed by General Statutes § 47-31. DeVita v. Esposito, 13 Conn.App. 101, 104, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1995). The statute requires that the complaint in such an action describe the property in question, state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the interest, title or claim, and it must also name the person or persons who may claim the adverse interest or estate. General Statutes § 47-31. The burden of proof in this case is on the plaintiff to prove that the boundary is where he claims it to be. Steinman v. Maier, 179 Conn. 574, 575, 427 A.2d 828 (1980); Simmons v. Addis, 141 Conn. 738, 741, 110 A.2d 457 (1954). The plaintiff is required to prevail on the strength of his title and not on the weakness of his adversary's claim. Velsmid v. Nelson, 175 Conn. 221, 229, 397 A.2d 113 (1978); Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967); Burke v. Ruggerio, 24 Conn.App. 700, 704, 591 A.2d 453, cert. denied, 220 Conn. 903, 593 A.2d 967 (1991).

"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 Assn. 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 Assn. v. Battistoni, supra; Staff v. Hawkins, 135 Conn. 316, 319, 64 A.2d 176 [1949]; Gioia v. Annunziata, 102 Conn. 52, 56, 127 A. 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, 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).

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." Frank Towers Corp. v. Laviana, 140 Conn. 45, 50, 97 A.2d 567 (1953); Velsmid v. Nelson, 175 Conn. 221, 227, 397 A.2d 113 (1978); Russo v. Corideo, 102 Conn. 663, 672, 129 A. 849 (1925). The general rule is that the designated quantity of land called for, here acreage, is the least reliable aspect of the description in determining the intent by the parties. See J. Backman D. Thomas, A Practical Guide to Disputes Between Adjoining Landowners — Easements (1990) § 8.02; 12 Am.Jur.2d Boundaries § 75; Erickson v. Wick, 22 Wash.App. 433, 591 P.2d 804 (1979); Texas Eastern Transmission Co. v. McCrate, 76 Ill.App.3d 828, 395 N.E.2d 624 (1979). 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. Frank Towers Corp. v. Laviana, supra, 51.

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." 12 Am.Jur.2d Boundaries, § 4, p. 549; 4 Tiffany, Real Property (3d Ed. 1975) § 993, p. 193; 3 American Law of Property, (Casner Ed. 1952) § 12.105; see Delphey v. Savage, 227 Md. 373, 374-75, 177 A.2d 249 (1962). It has been said that "a stone wall is strong evidence of a boundary line. Roberti v. Atwater, 43 Conn. 540, 546 [1876];" Pendleton v. MacDonald, Highway Commissioner, 6 Conn.Sup. 5, 7 (1938); see Wallingford Rod Gun Club, Inc. v. Nearing, 19 Conn.Sup. 414, 116 A.2d 517 (1955). 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. Delphey v. Savage, supra, 378. That court noted that, just as in contracts or wills, the intention of the parties governs the interpretation of deeds and that it is for that reason "that monuments named in deeds are given precedence over courses and distances, because the parties can see the tree, stone, stake, pipe or whatever it may be, which is referred to in the deed, but would require equipment and expect assistance to find a course and distance." Id. "[T]he physical disappearance of a monument does not terminate its status as a boundary marker, provided that its former location can be ascertained through extrinsic evidence." Bailey v. Look, 432 A.2d 1271, 1274 (Me. 1981); see Theriault v. Murray, 588 A.2d 720, 722 (Me. 1991); Seely v. Hand, 402 A.2d 162 (N.H. 1979); 6 G. Thompson, Real Property (1962) § 3042.

In Har v. Boreiko, 118 Conn.App. 787, 795-97 (2010) (footnote omitted), the Appellate Court noted the possible importance of expert witnesses as a help to the court in determining boundary disputes, and the trial court's discretion to weigh and to believe all, some or none of the expert testimony:

"[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Id. "The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact . . . [An appellate] court does not try issues of fact or pass upon the credibility of witnesses." (Internal quotation marks omitted.) Wasniewski v. Quick Reilly, Inc., 292 Conn. 98, 103, 971 A.2d 8 (2009).

"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 . . . In ascertaining the intention of the parties, it was proper for the trial court to consider the surrounding circumstances." (Citations omitted; internal quotation marks omitted.) Koennicke v. Maiorano, 43 Conn.App. 1, 10, 682 A.2d 1046 (1996).

In this case, the court had before it a large number of exhibits, including various deeds, maps and photographs. It heard testimony from the plaintiff, Fitzmaurice, O'Bymachow, Fisher and others. On the basis of our review of the court's memorandum of decision, we conclude that the key evidence with respect to the quiet title claims was the testimony of the parties' expert witnesses.

"[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."

Feuer v. Henderson, 181 Conn. 454, 458, 435 A.2d 1011 (1980). "In determining credibility of the experts, the court as the trier of fact could believe all, some or none of the testimony." (Internal quotation marks omitted.) U.S. Bank National Assn. v. Palmer, 88 Conn.App. 330, 338-39, 869 A.2d 666 (2005).

The court found that Fisher was a well qualified surveyor and a credible and persuasive witness. On the basis of our review of the record, we conclude that the evidence supports the court's finding with respect to Fisher's qualifications. Moreover, credibility determinations are beyond the reach of an appellate court. See Wasniewski v. Quick Reilly, Inc., supra, 292 Conn. 103.

A trial court previously has declined to accept the contents of maps as accurate in light of persuasive monuments on the property that "offer strong evidence of boundary lines;"

Speaking judicially, however, and not as a supersurveyor, I cannot agree with him in the manner in which he has laid his lines in the section under consideration, and my reason therefor is this. On the east side of the highway, as shown on the map, exhibit 6, there is indicated on land owned by one Dorgan the remnants of an old stone wall about 40 feet in length. Stone walls of such an ancient vintage as well as that which runs along the plaintiff's property offer strong evidence of boundary lines. Roberti v. Atwater, 43 Conn. 540, 546; Tierney v. Second Ecclesiastical Society, 103 Id. 332, 335.

Hawley v. Macdonald, 7 Conn.Sup. 516, 520 (1940).
The court credits the testimony of Attorney Harvey and Mr. Conklin placing the southern boundary of the Laneri "Homestead" parcel under the "ancient" stone wall. The court does not credit the Cuthbertson map, the Bonoff maps, the testimony of Mr. Bonoff, the testimony of Attorney Lomme and the testimony of Mr. Laneri placing the southern boundary of the Laneri "Homestead" parcel on the center line of the old highway. Additionally, the court does not credit the testimony of Mr. and Mrs. Laneri concerning the "trespass" of the septic system, the alleged proximate cause relationship between such septic system and any alleged dimunition in value of their property, and concerning alleged negligent infliction of emotional distress.[1]
The court finds that neither Robert Laneri or Janice Laneri proved any of their special defenses or counterclaims. The court also finds that Crary Brownell did not prove any of his special defenses.
Orders The court quiets title to the strip of land in question by declaring that the plaintiff, Charles D. Mierzejewski, owner of 133 Bashan Road, East Haddam, Connecticut, and the defendants, Robert Laneri and Janice Laneri, owners of 135 Bashan Road, East Haddam, Connecticut, each own in fee to the stone wall between their properties depicted on exhibit 2, the perimeter survey prepared by Conklin Soroka, Inc., and also depicted on other maps admitted into evidence. The easterly boundary of the Mierzejewski parcel to such stone wall is also depicted on such survey and on other maps admitted into evidence.
The court finds and confirms that the following right of way exists over the Mierzejewski property:

Together with a right of way over an old highway that runs along land of William B. Robinson and continues through other land of the Grantors to a point opposite the boundary described as 12.1 feet of the granted premises where the right of way turns Southerly from said old highway and enters upon the granted premises. Said right of way shall be 20 feet in width over its entire distance and shall be for any and all purposes in connection with the granted premises.

This right of way is described beginning on the eastern boundary of the Mierzejewski property and running generally southwesterly to a point where it turns off of the old highway bed southerly to the Brownell parcel. It runs in the bed of the old highway that although abandoned in 1866 was visible in 1958 and is visible today according to the testimony of witnesses during the trial. Within such old highway bed it is twenty feet in width. Such right of way is depicted on exhibit 2, the perimeter survey prepared by Conklin Soroka, Inc., and also depicted on other maps admitted into evidence.
The Laneri defendants failed to prove their special defenses and counterclaims.
Defendant Brownell failed to prove his special defenses.
Judgment may enter accordingly.
[1] None of the foregoing, however, should be interpreted as a vindication of the behavior, tactics and actions of Mr. Mierzejewski toward his neighbor Mr. Brownell prior to and during the Brownell case or toward his neighbors Mr. and Mrs. Laneri prior to and during this case.

The plaintiff argues that the court improperly determined that he had failed to prove the extinguishment of the right-of-way. In support of this argument, the plaintiff presents two claims, namely, that the court improperly determined that he had not extinguished the right-of-way by (1) adverse possession or (2) prescription. For the reasons that follow, we disagree with both of his claims.

The footnotes in the above text are as follows: