Opinion
No. CV 02-0469377 S
August 31, 2004
MEMORANDUM OF DECISION
The plaintiff, the owner of property at 6-8 Cove Street, New Haven, Connecticut, has filed an amended complaint dated October 6, 2003 seeking a judgment pursuant to Connecticut General Statutes Sect 47-31, determining the rights of the parties to, and settling the title to, an area of beach located on the waterfront of New Haven Harbor in the Morris Cove section of New Haven. The defendant is the owner of property at 1 Cora Street, New Haven, next door to the plaintiff. Each party has frontage on New Haven Harbor. In his answer to the complaint, the defendant claims that he is the owner of the beach, denies that the plaintiff owns any part of the beach, and pleads special defenses alleging that any accretions of land inured to the benefit of the defendant. The defendant also pleads by way of special defense that the plaintiff has no adverse possession rights to the beach. During trial the plaintiff stated that no claim of adverse possession was being made, and therefore that issue is not before the court.
The defendant has also filed a counterclaim alleging that the plaintiff has constructed a concrete retaining wall which encroaches nine feet onto the defendant's property, and also that he has damaged the defendant's property in various respects. In his counterclaim the defendant is seeking a determination by the court that the plaintiff is encroaching on the defendant's property as alleged, and he is also asking the court to order the plaintiff to remove the concrete wall and to replace certain trees and fence posts, allegedly improperly removed by the plaintiff from the defendant's property. The counterclaim also alleges that the plaintiff has removed boulders, stones, blocks and soil which formed the foundation of a concrete parking slab on the defendant's property, and requests that the court order the plaintiff to replace the material removed and to restore the structural integrity of the parking slab. The plaintiff has denied the allegations of the special defenses and, other then admitting that the parties are abutting property owners, denies all of the allegations of the counterclaim. The case was tried before this court on January 7, 8, 9, 12, 13 and 14, 2004.
The following facts are found. The plaintiff is the owner of property located at 6-8 Cove Street in New Haven, also described as 8 Cove Street, which was acquired from Patrick Palmieri on October 17, 2000. Mr. Palmieri, who is the principal of the plaintiff, acquired the property on December 30, 1998. The property is bounded on the north by New Haven Harbor 100' and on the west by property of the defendant. The defendant is the owner of property located at 1 Cora Street, New Haven, which he acquired from Jean Ianuzzi on February 7, 2000. The property is bounded on the north by New Haven Harbor 120' and on the east in part by the aforesaid property of the plaintiff and in part by Cora Street. The description of the north boundary of the defendant's property as 120' on New Haven Harbor does not include any possible change in the length of that boundary by virtue of the existence of the beach which is one of the subjects of this litigation. Located westerly of the defendant's property, and also fronting on New Haven Harbor, is property owned by the City of New Haven, known as Lighthouse Point Park. The deeds by which each party holds title include together with all water rights, wharf rights and riparian rights and privileges connected with and appurtenant to the above-described premises. The entire west boundary of the plaintiff's property is in common with a portion of the east boundary of the defendant.
On February 10, 1960, "S.A. Rascati et al" submitted an application to the State Board of Harbor Commissioners For New Haven Harbor (Board) for permission to build a rock groin and breakwater on 8 Cove Street. 8 Cove Street was described as "front 100, rear 100, deep 200." The application stated that the owner of the land was Eli Rascati, that the land was leased by "et al.," and the application was presented by S.A. Rascati. The proposed rock groin and breakwater was described in part as having a length of "300' running approximately south-north and 160' feet running approximately east-west." As stated in the application, the purpose of the construction was to protect the property at 8 Cove Street from storm damage, to prevent the docking area from being filled in with sand that had been shifting back from Lighthouse Point, and to establish a safe mooring area for small boats. The application listed "L. Consiglio" as the owner of the property described as 14 Cove Street located on the east side of 8 Cove Street, and "Casanova" as the owner of property described as Cove and Cora Streets located on the west side of 8 Cove Street. On April 7, 1960, Louis Consiglio and James Casanova each filed an affidavit with the Board stating that "I James Casanova, (Louis Consiglio) consent to the construction of a groin at No. 8 Cove St., and am in agreement with its specifications; however, I further relieve myself of any financial, taxes, legal, or moral responsibilities resulting from said construction." On May 13, 1960, the Board granted permission to build the groin and breakwater (jetty).
The 300' section of the jetty was constructed between 1960 and 1965. The jetty was thereafter extended in an easterly direction. That extended portion of the jetty is not relevant to the issues in this case. Prior to the construction of the jetty, the shoreline in front of 1 Cora Street was rocky with little or no sand beach. Sediments, including sand are moved by wind, waves, and tidal current into New Haven Harbor in a general southeast to northwest direction. The jetty acted as a trap for the sand and, through accretion, sand was slowly deposited in front of 1 Cora Street creating a large sand beach. By 1986 the beach had fully formed on the left or west side of the jetty in front of 1 Cora Street. This beach area is now triangular in shape being bounded on the east approximately 230' by the jetty, on the northwest approximately 300' by New Haven Harbor, and on the south approximately 80' by Lighthouse Park and 120' by the defendant's property at 1 Cora Street.
As indicated above, the issue raised by the plaintiff's complaint and the answer thereto is the determination as to the ownership of the large beach that was caused to be created as a result of the construction of the portion of the jetty which runs for 300' in a north-south direction from the shore. The plaintiff claims that ownership of the beach should be divided by what he refers to as the cove method of apportioning littoral rights. The court heard considerable evidence offered by both parties concerning littoral rights, and how they should be apportioned as between abutting neighbors, although the defendant claims that this case is not concerned with littoral rights, but rather is about the doctrine of accretion. The court agrees with the defendant.
Littoral rights are concerned with access to land which is under water or access to the water. "It is well established that while the state, as the representative of the public, is the owner of all land between the high and low water marks upon navigable waters, owners of adjoining upland have the exclusive, yet qualified, right and privilege to dig channels and wharf out from the owner's land in a manner that does not interfere with free navigation. Lovejoy v. van Emmenes, 177 Conn. 287, 290-91, 416 A.2d 1192 (1979); Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 624, 153 A.2d 444 (1959); Rochester v. Barney, 117 Conn. 462, 469-70, 169 A. 45 (1933). Nevertheless, when a party's upland property adjoins that of another, "each must exercise his [or her] respective littoral rights with due regard for the corresponding rights of the other . . . The fundamental riparian right on which all others depend is the right of access . . . This is the most important consideration in any division of the respective rights of the parties to land under water." (Citations omitted.) Rochester v. Barney, supra, 469." Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 769. Every case cited by the plaintiff in his brief in support of his claim as to how the beach should be apportioned by the parties concerned the apportionment of water rights.
Since this case concerns ownership of a beach, and not water rights, the subject of littoral rights is not relevant, and the court need not discuss the various methods of apportioning such rights, which were the subject of considerable evidence and briefing. The beach in question has been created by a natural process known as accretion.
In Black's Law Dictionary (3rd Ed. 1969) the term "accretion" is defined as "[t]he increase of riparian land by the gradual deposit by water of solid material, whether mud, sand, or sediment, so as to cause that to become dry land which was before covered by water." The court is of the opinion that the creation of the beach in this case is a clear-cut example of accretion. The ownership of the land created by accretion is one of the major issues in this case.
The courts have held uniformly that land created by accretion becomes the property of the owner of the uplands. "The owner of waterfront property is benefitted in title by whatever may be joined to his land, above the high-water mark, through accretion." (Citations omitted). Roche v. Fairfield, 186 Conn. 490, 495. "Thus, in Gould, Waters, Section 162, it is said that every proprietor is entitled to frontage of the same width on the new shore as on the old shore, and at low water mark as at high water mark, without to the side lines of the upland In general, the lines of division are to be made to the channel in the most direct course, from the lateral boundaries of the several tracts of upland to which the flats are appended." Wells v. Bailey and Others, 55 Conn. 292.
One of the issues in dispute is the ideation of the north boundary of the defendant's property. The plaintiff maintains that it is a certain "cinder block wall" which is located in the area of the pre-jetty shoreline. The defendant claims that it is the harbor. All of the deeds in the defendant's chain of title describe his northerly boundary as being New Haven Harbor. In a case in which the plaintiff's property was described in his deed as being bounded by Long Island Sound, the court held that "[s]uch a boundary is tantamount to ownership of the beach adjoining the upland, from the upland to the high-water mark of the beach." Mandes v. Godiksen, 57 Conn.App. 79, 88. See also, McCullough v. Waterfront Park Associates, Inc., et al., 32 Conn. 746, 751.
The court finds, based on all the evidence, that the defendant's property is bounded on the north by New Haven Harbor, which boundary, as the result of the accretion of the beach, has shifted further north to the water side of the beach. "Where a stream forms the boundary line and the boundary bank is changed by the process of accretion or erosion, the boundary, whether private or public, follows the stream. When grants of land border on a stream and the course of the stream is changed by the gradual washing away on the one side and the gradual building up on the other, the owner's boundary changes with the changing course of the stream. Where a waterline is the boundary of a lot or tract of land, such line, no matter how it shifts, remains the boundary, and a deed describing the lot or tract by number or name conveys the land up to such shifting line exactly as it does up to a fixed side-line and conveys all the accretions thereto." Sec. 2560 "Commentaries on the Modern Law of Property" by Thompson, George (1924).
The court finds that the area of the beach, as described above, which is located between the east and west boundaries of the defendant's property, as those boundaries are extended to the present high water mark, is the property of the defendant to the exclusion of the plaintiff.
In order to resolve the issue of the ownership of the beach and the claims alleged in the counterclaim it is necessary for the court to determine the location of the defendant's east boundary line. It is the plaintiff's claim that an iron pin which he located on the aforementioned cinder block wall marks the common boundary line. The cinder block wall runs in a general easterly and westerly direction and at its easterly end turns to the south for a few feet. The pin was found at the corner where the wall turns south. It is the plaintiff's claim that the corner of the wall marks the northeast corner of the defendant's property. He offered the testimony of Robert Bascom in support of this claim, and a survey, Exhibit 39, prepared by Mr. Bascom. In locating the defendant's easterly boundary on Exhibit 39, Mr. Bascom draws the line as commencing at its south end on the west curb line of Cora Street, running northerly along the west curb for approximately forty feet. At that point, the boundary becomes in common with the plaintiff's boundary line. The line then veers slightly to the west on a straight line to the corner of the cinder block wall, where it ends. If this is the correct common boundary then the concrete retaining wall constructed by the plaintiff in 2002 and most of the arborvitae trees installed by the defendant are on the plaintiff's property. Mr. Bascom's opinion as to where the common boundary line is located is based on his opinion that the cinder block wall is the northerly boundary of the defendant's property, and that the easterly boundary is marked by the pin found by him in the northeast corner of the cinder block wall. If his opinion is correct then the plaintiff's easterly boundary and his westerly or common boundary with the defendant are not parallel. The court does not agree with Mr. Bascom's location of the common boundary.
The defendant offered the testimony of James Nagle, a land surveyor, to establish where he claims the common boundary between the plaintiff's and defendant's property is located. Mr. Nagle had prepared a boundary determination map, Exhibit H, which reflects that location. Mr. Nagle reviewed the deeds in both chains of title back to 1874 and the deeds all refer to the harbor as being the northerly boundary of both properties. He located five-inch by three-foot-long stone monuments which had been set in the 1920s at the block corners throughout the city, including one at the corner of Cora and Cove Streets. These monuments help to define on the ground the actual geometry of the street layouts. He also found other iron pipes and pins set by surveyors. He also utilized several maps, all reflected on Exhibit H, in locating the common boundary. Mr. Nagle was of the opinion that the cinder block wall and the corner of said wall where it projects slightly to the south, did not indicate where the north and east boundaries of the defendant's property were located, but rather that the corner of the wall was several feet westerly of the common boundary. Mr. Nagle fixed the direction of the boundary line from deeds and engineering records, and the length of the line based on the deeds which stated that the property was bounded on the north by New Haven Harbor. He located the defendant's east boundary as beginning at its southerly end at a point on the west curb of Cora Street approximately 40' south of the stone monument at the corner of Cora and Cove Streets, running northerly to the corner stone monument and then in common with the plaintiff. The boundary then goes across the concrete retaining wall, and through the jetty to the present mean high water mark at the harbor. The entire boundary, from the southerly end on Cora Street to the northerly end at the harbor is a straight line and approximately 455' in length. The boundary as depicted on Exhibit H by Mr. Nagle extends approximately 230' further to the north than as shown on any other deed or map because Mr. Nagle is the first surveyor to reflect the existence of the beach.
Mr. Nagle and another defense witness, Attorney Thomas Lambert, both testified, based on their review of all of the relevant deeds, that the plaintiff's east boundary, the common boundary, and the defendant's west boundary, are and have been parallel since these properties were created out of a larger property in 1874, and that the common boundary with the plaintiff has not changed since 1874. Mr. Lambert also agreed with Mr. Nagle's opinion as to the location of the common boundary line.
In further support of his claim that the common boundary is the extension of the westerly curb line of Cora Street, and is parallel with the plaintiff's easterly boundary, the defendant introduced Exhibit B, a survey prepared in 2001 for the plaintiff by a surveyor named Lawrence Fisher. At that time the plaintiff was involved in litigation concerning his easterly boundary with the neighbor on the east side of his property. The survey was filed in court by the plaintiff as part of a disclosure of an expert witness. In his survey, Mr. Fisher described the plaintiff's property as follows. "Your property was established as the westerly line being an extension of the westerly line of Cora Street, and the easterly line being parallel with and measuring 100 feet therefrom along Cove Street."
The court accepts the testimony of Mr. Nagle and Mr. Lambert. The court finds that Exhibit H is accurate with respect to the location of the defendant's east and west boundary lines. The court finds that entire beach area earlier described, except for a small portion which abuts the property owned by the City of New Haven, is within the defendant's east and west boundary lines as those lines are extended across the beach to the mean high water mark, and that the defendant is the owner of the beach between those lines out to the mean high water mark as set forth on Exhibit H. The plaintiff has no right to use the beach.
It is not necessary nor appropriate for this court to determine ownership of the jetty in order to decide the issues in this case. Nor is it necessary to decide whether the jetty is to be considered as land or as a structure. If this court had determined that the jetty was land and it belonged to the plaintiff, which the court does not find, the plaintiff would still have no rights to the accreted beach. The beach belongs to the defendant as the owner of the uplands, and the plaintiff's property, even if the jetty were to be included as land and as part of his property, is not upland of the beach.
The court, having found that the defendant's easterly boundary line is the westerly curb line of Cora Street to the monument located at the corner of Cove and Cora Streets and then northerly as said curb line is extended in a straight line to the present mean high water mark, in part in common with the plaintiff, further finds that all of the arborvitae trees, most of the concrete retaining wall constructed by the plaintiff in 2002, and 2440 square feet of the original 300' jetty, all as is set forth in Exhibit H, are located on the defendant's property.
In connection with his counterclaim the defendant in his brief asks the court to order that the portion of the jetty which encroaches on his property be removed, and that the portion of the concrete retaining wall which encroaches on his property be removed. He also requests that he be compensated for the damage and/or destruction of his trees, the removal of his fence posts, and the damage to his driveway.
With respect to the defendant's request in his brief that the court order the plaintiff to remove 2440 square feet of the portion of the 300' section of the jetty which has been in place for forty years, the court notes that no such relief was requested in the counterclaim. However, if such relief had been requested the court would not grant the request. As noted above, the defendant's predecessor in title, James Casanova, on April 7, 1960, prior to the construction of the jetty, consented to the construction and its specifications in an affidavit filed with the Board charged with the responsibility of issuing a permit for the construction. In addition, until this litigation, there is no evidence that either the defendant or any of his predecessors in title has ever made a claim that the jetty encroached on the defendant's property or on his littoral rights. The court would also note that the defendant contests the plaintiff's claim that he is the owner of the jetty. In any event without determining who is the owner of the jetty, the court finds that the defendant and his predecessors in title, by their conduct have consented and acquiesced to the present location of the jetty.
With respect to the damages aspect of the counterclaim the court finds that the defendant has proven that the plaintiff improperly cut down four of his arborvitae trees. Reasonable damages for the loss of the four trees is found to be $1,000. The defendant has failed to prove his other claims for damages.
The final request made by the defendant in his counterclaim asks the court to order the plaintiff to remove the portion of the concrete retaining wall which encroaches on the defendant's property. The court viewed the premises, with counsel, on August 9, 2004. The court also viewed the premises, without counsel, on August 26, 2004. The wall is a substantial structure about 18" wide and approximately 100' long, most of which appears to be on the defendant's property. The court is unaware of its depth. The court finds that the plaintiff was not aware that he was constructing the wall on the defendant's property.
The defendant's request that the court order the plaintiff to remove the portion of the concrete retaining wall constructed by the plaintiff in 2002, and which is on the defendant's property, was not addressed in the briefs filed by the parties, and will not be ruled on by the court at this time. The parties are ordered to file briefs on this issue by September 14, 2004. If either party wishes to file a reply brief, he shall file it by September 21, 2004.
Accordingly, judgment may enter establishing the easterly boundary line of the defendant hereto as: a straight line beginning at a point on the westerly curb line of Cora Street approximately 40' south of the corner of Cora and Cove Streets, and then running northerly along said curb line and the extended curb line for approximately 455' to the mean high water mark of New Haven Harbor, all as depicted on the property survey prepared for the defendant on August 30, 2002 by James E. Nagle, registered land surveyor, which survey is in evidence as Exhibit H.
This finding as to the location of the defendant's easterly boundary line is not to be construed as either a determination of the ownership of the jetty or whether the jetty is real property.
Judgment may enter on the counterclaim in favor of the defendant Frank Cirino as against the plaintiff Palmieri Cove Associates in the amount of $1,000.00.
The court will retain jurisdiction of this file pending a final ruling on the defendant's request that the plaintiff be ordered to remove the portion of the concrete retaining wall which encroaches on the defendant's property.
William L. Hadden, Jr.
Judge Trial Referee