Opinion
No. LLI-CV-04-4000612S
May 24, 2006
MEMORANDUM OF DECISION
I. NATURE AND HISTORY OF THE PROCEEDINGS
This action arises out of an ongoing conflict over the ownership of a 1.728-acre piece of real estate located in the Lake Waramaug area of Warren, Connecticut. The plaintiff is the undisputed owner of real estate south of the disputed property abutting Curtis Road, while the defendant RMM Consulting, LLC (hereinafter referred to as "RMM") is the undisputed owner of the real estate located north of the disputed piece, now abutting Sheehan Road.
The first count of the plaintiff's amended complaint dated March 15, 2005, asks the court to find that the plaintiff is the record title owner of the disputed property, pursuant to General Statutes Sec. 47-31. The second count, in the alternative, seeks a finding by the court that the plaintiff owns the disputed piece under the doctrine of adverse possession. Additional counts seek money damages from the defendants for the alleged destruction of numerous trees and a stone wall, unjust enrichment, maintaining a nuisance, trespassing and engaging in unfair trade practices in violation of Connecticut's Unfair Trade Practices Act (CUTPA).
The statute provides a procedure and remedy for a party to "quiet title" to a claim of ownership to real or personal property when a claim of ownership of an interest therein is asserted by another. Sub-paragraph (a) provides:
(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.
Maureen Morrill is the sole member of RMM, a limited liability corporation.
In their counter-claim filed on January 3, 2005, the defendants likewise request the court to quiet title to the disputed piece by finding either that RMM owns the same by record title (first count) or via adverse possession (second count). Additional counts seek money damages for the plaintiff's alleged slander of title, tortious interference with business relations and fraud.
The defendants impleaded, as third-party defendants, Mary Louis, Matthew and John Sheehan and Monica E. Tague, all of whom sold the disputed parcel to, as trustee, Morrill's attorney and nominee, who conveyed the property to RMM. The one-count third-party complaint is based upon the warranty covenants contained in the instrument of conveyance. RMM seeks reimbursement by the third-party defendants for any and all damages that RMM might be obligated to pay in the event that the plaintiff is found to be the owner of the disputed piece.
See Plaintiff's #32 and #34.
On August 5, 2005, the court (Pickard, J.) ordered the title and adverse possession issues severed from all other counts. Thus, at the trial that followed, this court's duty was limited to deciding the factual and legal issues raised by the plaintiff in the first two counts of his amended complaint and those issues raised by the defendants in the first two counts of their counterclaim. Given the obvious interests involved and over the objection of the plaintiff, counsel for the third-party defendants was permitted by this court to fully participate at the trial.
Counsel was accorded full-party status during the trial and was permitted to file post-trial briefs.
This court, therefore, is obligated to answer herein the following questions:
1. Does the plaintiff have record title in and to the disputed property?
2. Does RMM have record title to the disputed property?
3. In the event that the court finds that one of the parties owns, by record title, the disputed property, has either the plaintiff or the defendant, RMM, if found not to have such title, proven equitable title to the disputed property via adverse possession?
As will become abundantly apparent, in order to provide the answers to those questions, the court must address numerous factual and legal sub-issues raised by the parties.
The trial was held over a seven-day period, from September 27 through October 7, 2005. The court heard from ten witnesses, two called by the plaintiff and six called by RMM; the plaintiff and Morrill each testified. The plaintiff called Robert Moran, an attorney, and Robert Bolte, a professional title searcher, both of whom examined the Warren land records. RMM called Thomas McDermott, who, as attorney and trustee for RMM, received a deed to the disputed property; David Miles, an attorney, who examined the Warren land records; Michael Riordan, a surveyor; and Stuart Bohan, an attorney, who is an expert in the marketability of land titles. In addition thereto, RMM called Linda Burtaccini, the tax assessor and Joseph Manley, the building official in Warren. Eighty-nine (89) exhibits were received, in evidence, most of which consisted of deeds and maps. Upon the conclusion of the evidence, a briefing schedule was ordered. The court received initial briefs and reply briefs from each of the three parties. The court compliments each of the attorneys who presented this case. Their behavior and professional manner, exhibited during the trial and the organization and content of their respective briefs was exemplary.
It is noteworthy and greatly appreciated by this court, that counsel, prior to the commencement of trial, fully cooperated with each other in agreeing upon and marking the documents to be submitted into evidence.
The court, after reading all of the pleadings; reviewing and studying all of the exhibits; considering the testimony of all the witnesses; assessing the credibility of each, and considering the oral and written arguments of counsel, makes the following findings.
II. THE DISPUTED PROPERTY
The 1.728 acres in dispute are shown in the plaintiff's chain of title on a map entitled, "Map Showing Property, Ethel and Hugh Porter, Curtis Road, Warren, Connecticut, Scale 1" = 40 ft. July 1954, L.W. Marsh, surveyor." Said map depicts three parcels, totaling 10.22 acres, is recorded at the Warren land records as Map #112 and is plaintiff's #41. In the RMM chain the disputed property is shown on a subdivision map entitled, "Map of Property of John J. Sheehan, Curtis Road, Warren, Connecticut, scale 1" = 100 feet, November 1973, George P. Burnham, land surveyor. The disputed property is shown as Lot #9B on said map, however, due to a reconfiguration of that lot and Lot #9A, which was also purchased by RMM at the time of the purchase of 9B, the lot shown on the aforesaid subdivision map is now referred to by all of the parties as, "Old Lot 9B." The map depicts a thirteen lot subdivision, is recorded at the Warren town clerk's office and is plaintiff's # 38.
See, plaintiff's #42, which contains the approved reconfiguration of 9B and 9A, to permit access to Sheehan Road. It was recorded by RMM as Map #749 at the Warren town clerk's office on May 15, 2003.
The dimensions of plaintiff's #41, and plaintiff's #38 are substantially the same. It would appear to this court that any professional title searcher, who performed a typical marketable title search of either chain would have been able to readily discover the conflicting claims of ownership by checking the maps of abutting owners, a step, which, apparently, was not taken by any professional title searcher until this litigation commenced.
As will be discussed herein, Morrill's land surveyor did discover the conflicting maps, but chose not to inform her of the problem prior to the purchase. Unfortunately, according to Morrill, RMM had already purchased Lot 9B and a single-family dwelling was under construction, before the conflicting title claims, depicted graphically by the aforementioned maps, became known to her. In this regard, the plaintiff, who is a college professor and a teacher of music, was able to identify the conflict during a one-half hour visit to the Warren town clerk's office. Although his discovery was, as it were, after the fact, Mr. Porter is neither an attorney nor a title searcher.
III. RELEVANT HISTORICAL FACTS A. As To The Plaintiff
The real property on Curtis Road has been owned by the Porter family since 1937. That is the year when the plaintiff's father was deeded 5.18 acres of land by Julian Voisard. Plaintiff's # 11. The property is shown on a map that was prepared in anticipation of that conveyance by Charles J. Osborne, a surveyor. The map is recorded as Map #69 at the Warren town clerk's office and is plaintiff's #37. In 1954 the plaintiff's parents purchased an additional 5.64 acres from Voisard, who had since become a family friend, as well as their neighbor. The transaction was consummated via two deeds by which Hugh Porter, the plaintiff's father, re-conveyed the original 5.18 acres to Voisard, who then conveyed the 10.82 acres jointly to Hugh and Ethel, his spouse, the plaintiff's mother. The real property conveyed consisted of three parcels; the most recent parcels to the east and north of the original property purchased by Hugh in 1937. An additional map was created to accompany this transaction; it is specifically referred to in the warranty deed from Voisard to the Porters. The deed is plaintiff's #12, dated and recorded July 31, 1954 at Volume 24, Page 467-68; the map is plaintiff's # 41 and was also recorded as Map #112. In 1961 Ethel received title to the 10.82-acre parcel via a probate certificate for jointly owned property recorded January 19, 1961 at Vol. 22, Page 466. Plaintiff's #13. In August 1986, the plaintiff's mother, by way of a quitclaim deed, conveyed the parcel to the plaintiff. Thus, the plaintiff's immediate title instrument is dated and recorded August 11, 1986 at Vol. 35, Page 986 of the Warren land records and is plaintiff's #14.
The plaintiff testified as to his recollections and experiences, relative to his family's property on Curtis Road. The plaintiff, who resides in Sarasota Springs, New York and who is a professor of music and literature at Williams College, comes from a family of musicians, including his mother, his father and his children. The initial 5.18-acre parcel was purchased by his parents as a summer "get away" from New York City, where they resided and taught music. Three years after the plaintiff's mother and father made the purchase, at a time when the plaintiff was four years of age (he is now 70), a summer cottage and outhouse was built. The plaintiff testified that his parents and him kept the majority of the property in its original, heavily wooded state so that they could enjoy the privacy and play their music without disturbing their neighbors. They eventually constructed a small "practice house," after clearing a five foot wide path from the cottage, through the woods, to the music house, a distance of one hundred yards. The plaintiff was nineteen years of age when the 1954 purchase of the 10.82 acres was consummated. He remembers walking the property at the time and was, therefore, aware that his father and mother believed that the property included what is now the disputed piece, which is north of the original 5.18-acre parcel and north of a stone wall that is the northerly boundary of the plaintiff's undisputed real estate and the southerly boundary of old Lot 9B, as depicted on plaintiff's #38.
The plaintiff testified that, except for clearing the property for the construction of the cottage, a rear yard fifty to sixty feet behind the cottage and the one hundred yard path to the practice house, his parents and he intentionally kept the thickly-wooded real estate in its original condition, "primitive, wild and private." He added that the piece north of the stone wall was used as a buffer to secure their privacy, as it was atop a hill to the rear of the cottage and the practice house.
The plaintiff testified that, he could see through the trees to Sheehan Road, which was part of the subdivision north of the plaintiff's property, although, in walking his property, he saw no mailboxes until the early 1990s. During 2003, he was at the cottage, "quite a bit less," due to problems in his residence that he needed to address. In the fall of 2003, Morrill contacted the plaintiff by telephone and requested and received permission from him to remove, according to the plaintiff, ten or fifteen trees from the plaintiff's real property. The plaintiff, however, instructed Morrill not to disturb any of the trees to the north of the property or at the top of the hill from the cottage to the stone wall. The conversation was followed by the exchange of cordial letters, as Morrill had offered to clear some brush and trees near plaintiff's garage in appreciation of the plaintiff's kindness. See plaintiff's #49-50. When the plaintiff next visited his cottage, in May 2004, he viewed, "the most heart-breaking site that [he] ever saw in [his] life." The plaintiff testified that it appeared that hundreds of trees had been cut down and removed from his property, as a "swath" had been cleared from the northerly portion thereof to the rear of the cottage and he could see the house that Morrill, through RMM, had constructed on the top of the hill.
After this shocking discovery, the plaintiff contacted Morrill by telephone. Thereafter letters of a different tone and content were exchanged. The plaintiff testified that, at first, Morrill was very contrite; he thought that she appreciated and understood the harm that was done, as, according to the plaintiff, "something irreplaceable was taken" from him and his family forever. Morrill's responses soon became, in this court's view, condescending and legalistic. See plaintiff's #51, 52 and 59. Morrill accepted no blame for what the plaintiff felt was a disastrous rape of his property; on the contrary, she even suggested that the actions of her tree-cutter actually improved and benefitted the plaintiff's property! As noted, once the plaintiff realized that numerous trees were cleared from the parcel that is north of the stonewall, he visited the Warren town clerk's office where he discovered the conflicting maps. Shortly thereafter he retained counsel, resulting in the commencement of this action.
B. As To RMM and Morrill
RMM has had recorded title to the disputed property since May 15, 2003. By warranty deed from the Sheehan children dated May 9, 2003, and recorded May 15, 2003 at Vol. 60 Page 478-79 of the Warren land records, Morrill's attorney took title, as trustee, to old Lot 9B. Plaintiff's #32. Attorney McDermott, in said capacity, also took title to old Lot 9A by virtue of a warranty deed from Carl J. Becher and Carol A. Becher dated April 25, 2003 and recorded May 15, 2003 at Vol. 60, Page 480. Plainitff's #33. By statutory quitclaim deed dated and recorded May 15, 2003, Attorney McDermott conveyed both Lot 9A and Lot 9B to RMM. Plaintiff's #34. The two lots were so conveyed, based on a revision of old Lot 9A and 9B, as shown on a map entitled, "Lot Line Rev Map Showing the Revision of Lots 9A and 9B as shown on T.C. Map #4-418, Prepared for RMM Consulting, LLC, Sheehan Road, Warren, Connecticut, Scale 1" = 40,' dated December 15, 2002, revised April 22, 2003, Michael J. Riordan, Licensed Land Surveyor." See plaintiff's # 42. It is noteworthy that, until Warren zoning officials approved of the lot revisions, old 9B was a landlocked lot, a factor that is clearly reflected in the significantly lower price paid by RMM to purchase that lot, as compared to that paid for old Lot 9A; the latter afforded access to Sheehan Road, without the revision. Attorney McDermott, testified that he performed a typical title search on old Lot 9B and was unable to detect anything on the land records that would cause concern as to the marketability of title. He stated that when he viewed the property in August 2003, trees had been cut and stacked and the foundation of the house on new Lot 9B was partially completed. He was unaware of any dispute as to the ownership of old 9B until the following spring, after the plaintiff had visited the property and communicated his concerns to Morrill.
Michael Riordan testified on behalf of the defendants. He is a licensed surveyor with thirty-two years experience. In November 2002, he was retained by Morrill, for whom he had done work in the past, to investigate and advise his client as to the viability of building a "spec house" on what was then landlocked old 9B. In December 2002, after his assistant viewed relevant maps, deeds and tax cards, and the property was staked, Riordan prepared a survey map of old Lot 9A and 9B ( plaintiff's #58), which relied and was dependent on a map prepared for John Sheehan in November 1973, ( plaintiff's # 38), which was itself based on a map prepared for Winifred Young, (hereinafter referred to as the Young map, plaintiff's # 35), in 1936. As previously noted, during his examination of the Warren land records, while researching the relevant conveyances and maps, Riordan discovered the Porter map ( plaintiff's #41) and thereby realized, by comparing the parcel shown on the Porter map with that shown on the Sheehan map, that each of the abutting owners possessed a recorded map depicting ownership of old Lot 9B. Riordan concluded, however, that Voisard could not have deeded old Lot 9B to the plaintiff's parents since, it was his opinion that Voisard never owned the parcel. In walking the property, he saw no evidence, such as a fence, a sign or the removal of the stone wall, that either Voisard or Porter ever attempted to possess the disputed piece. Amazingly, despite two recorded maps, each graphically demonstrating conflicting claims of ownership, Riordan did not inform Morrill of the potential legal battle and allowed her to proceed with the purchase of the lot and construction of a dwelling thereon. When asked by this court to explain why he did not communicate this crucial information to his client, he offered that he trusted his findings and knew that his client would follow his advice. He did not, however, provide Morrill with the option to do so! Having chosen to keep Morrill in the dark relative to the obvious cloud on title, Riordan proceeded to reconfigure old Lot 9B, so that two home sites, each with access to Sheehan Road, would emerge. Thus in April 2003, he prepared the revision map ( plaintiff's #42), that was referred to in the deed that RMM received three weeks thereafter. After the revision was approved by local authorities, construction by RMM of the single family dwelling on new Lot 9B commenced. Riordan prepared an "as built" survey map, which reveals that the rear deck of the house now standing on new Lot 9B encroaches, in its entirety, into old Lot 9B, the disputed piece. See defendant's #17 and 18. A certificate of occupancy was issued for the house on December 10, 2004. Defendant's # 12. Due to this litigation, the house remains unsold and is currently unoccupied.
Morrill's version of her contact with the plaintiff is quite different than that testified to by the plaintiff. She claims that during her initial telephone conversation with the plaintiff, both of them agreed that the stone wall was the boundary. She minimized the plaintiff's reaction to the tree-cutting operations by agreeing that he was "not happy," as the scope of the work was more than the plaintiff thought. She asserted that the plaintiff was seeking compensation for the destruction of his trees only and did not mention to her his claimed ownership of old Lot 9B. She claimed that the first she knew of the plaintiff's claim was when she was told by Riordan that he had been so informed by an attorney retained by the plaintiff. As noted, the plaintiff's claim to the property was well known to Riordan. Morrill further testified that, from her initial conversation with Porter in November 2003, she concluded that she had his permission to cut any and all trees that she wished to remove. She claimed that the plaintiff requested that she clear the area around the practice house. She then proceeded to authorize the destruction and removal of numerous trees (four to five inches in diameter), southerly from RMM's undisputed property halfway into the plaintiff's undisputed property and, in effect clear-cut the entire area.
C. Past Knowledge of the Dispute
The history of the Porter and RMM chains of title dates back to one Elias Taylor, who in 1816, while Dolly Madison was serving dinner at the White House, owned a large farm of which all of the land owned by the plaintiff and by RMM was a part. Thus, in arriving at its decision as to who is the owner of the disputed piece, this court has reviewed numerous instruments of conveyance and maps that encompass nearly two hundred years, as recorded on the Warren land records.
Prior to addressing each party's claim as to the strength of title and as to the weakness of the title of the other and prior to discussing the alleged kinks in each party's chain, this court would be remiss if it neglected to mention several instances within the past seventy years in which the current dispute became known, that is, before Riordan's discovery of the conflicting claims in late 2002.
As will be hereinafter addressed in more detail, as one of the kinks in RMM's chain of title or, as one of the plaintiff's witnesses put it, "red flags," in November 1941, the Housatonic Valley Insurance Agency, (hereinafter referred to as HVIA), which, in 1938, was the grantee of Winifred Young, conveyed by warranty deed to Hoyt and Helen Smith 41.5 acres that, RMM claims, included the disputed property. The deed, however, excepted, "one and one-half (1 1/2) acres of land, more or less, claimed by Julian Voisard." Emphasis added. The piece referenced therein was conveyed to the Smiths, via a quitclaim deed, by HVIA immediately thereafter. Although the legal description contained in the quitclaim deed was taken from the Young map (1936), no reference to said map is to be found therein. Thus, in 1941, the dispute was apparent on the Warren land records. Unfortunately, the dispute was ignored by both predecessors in title to the current owners, and no attempt to quiet title was made at that time.
In 1974, the dispute, again, reared its ugly head, as evidenced by a series of letters among the late Judge Walter M. Pickett, Jr., who, at the time, represented the plaintiff's mother as her attorney, Attorney Henry B. Anderson, who represented the Porters in the 1954 purchase and Attorney Paul L. Cornell Jr., who represented John Sheehan, the father of the third-party defendants. See plaintiff's #44-48. A review of that correspondence clearly reveals that competent and experienced professionals were well aware of the conflicting claims to the disputed property and, although they exchanged letters and conflicting opinions, again, no action to quiet title was commenced by either side.
The plaintiff testified that during the pendency of this action, he found the letters, while reviewing old family documents. Until this discovery, the plaintiff had no knowledge of any past dispute involving his real property in Warren.
On August 30, 1974, Attorney Anderson wrote Attorney Pickett and detailed his findings from a title search performed by him, namely, that Mrs. Porter held record title to the disputed piece and that, if not record title, she had, "openly, visibly, notoriously, and under claim of right," been in possession of the disputed land since 1954." Plaintiff's #47. By letter dated October 16, 1974, Attorney Cornell disagreed, arguing that the stone wall was strong evidence of the boundary line and claiming that there was an additional two acres in the Voisard chain that could not be accounted for. Attorney Cornell asserted that Sheehan had clear record title to the disputed property and expressed the hope that, "we can work out this matter without having resort to the courts." Plaintiff's #44. In his final letter to Mrs. Porter, Attorney Pickett pointed out Attorney Cornell's failure to address the adverse possession claim and recommended that she take "no action." Plaintiff's #45.
Sixty-five years after the recorded claim to the disputed property was made by Voisard and thirty-two years after Sheehan and Porter, via counsel, acknowledged the dispute, but chose, for whatever reason, to ignore it, it falls upon this court to resolve the same and to identify the owner, legal or equitable, of the disputed property.
Just as the professionals disagreed in 1974, each attorney then clinging strongly to his title opinion, professionals are in disagreement in this case. The plaintiff produced an attorney with substantial experience in searching titles and a professional title searcher, each of whom, independent of each othier, and without previously prepared title abstracts, concluded that the plaintiff was the record owner of the disputed parcel, in an unbroken chain of title, dating back to 1816. The defendants offered testimony from an attorney who performed a title search, Riordan, the surveyor, and an expert in the marketability of land titles, whose testimony, individually and collectively, would establish record title in the name of RMM, in an unbroken chain, dating back to 1839. Each of their endeavors, however, was aided and prompted by title abstracts prepared and furnished by Attorney McDermott. The plaintiff demonstrated the numerous "red flags" that adversely impacted RMM's claim and labeled RMM's theory of record title as a "convoluted suspension of reality." RMM, on the other hand, referred to the plaintiff's "red flags" as, "red herrings," asserted that the plaintiff's claim of record title was noting more than an outright "land grab" and that plaintiff's title theory was fashioned from "whole cloth." As noted earlier herein, despite the impassioned rhetoric, each attorney presented his client's case to this court in great detail and in a highly professional manner. This court, therefore, in an effort to finally settle this property dispute, which has brewed for over six decades, has undertaken an exhaustive review of all of the maps and deeds presented and the applicable statutory and case law. In an effort to arrive at the correct decision, this court has read and reread the legal descriptions in those deeds that are material to a resolution of the factual and legal issues raised by the parties. This court has unfolded and refolded the relevant maps until they are worn out. Any less of an endeavor would not do justice to the parties or their counsel.
The quotations are taken from the briefs of the parties.
D. The Marketable Record Title Act
All the experts who testified in this case agree that, apart from the discovery of the conflicting recorded maps, anyone who performed a typical title search would be unable to discover the conflict that has precipitated this litigation. This is true, whether one researches the Porter chain or the RMM chain of title.
Connecticut's Marketable Record Title Act (MRTA), Sec. 47-33b, et seq., provides that any person who has an unbroken recorded chain of title that traces back, at least forty years to a connecting instrument of conveyance, has a "marketable record title" to the subject real property. The relevant connecting instrument is considered to be an owner's, "root of title." Mizla v. DePalo, 183 Conn. 59, 64 (1981). In this case, if a title searcher doing a search in 2005, via the grantee index, followed the plaintiff's chain of title, his connecting instrument, or root of title, under the Act would be the warranty deed by which Voisard conveyed the 10.82 acres to his parents in 1954, which, the plaintiff claims contains the disputed property. Plaintiff's #12. If, via the grantor index, the searcher then went forward to the date of the search, an unbroken chain would be established, thus justifying a finding, pursuant to MRTA, that the plaintiff had record title to the property searched and an opinion that the plaintiff held marketable title thereto. Likewise, if the searcher granteed RMM's chain of title, RMM's root of title would consist of three instruments from Hoyt Smith, as an individual and as administrator of his wife's estate, to Charles Augenthaler, each dated July 22, 1950. See plaintiff's #25 and 26. Augenthaler was the immediate grantor of John Sheehan, father of the third-party defendant's, who formed a subdivision of which the disputed property, i.e., old Lot #9B, according to the defendants, is a part. If the searcher then grantored subsequent instruments, an unbroken chain to RMM would be established, thereby justifying a finding, pursuant to the MRTA, that RMM had record title to the property searched and an opinion certifying marketability.
The ultimate purpose of the Act is to, "simplify and facilitate land title transactions by allowing persons to rely on record chain of title . . . and thus avoid the necessity of examining the record back into distant times for each new transaction." Medway Associates v. Shoneck, et al. (#234874), 1992 Ct.Sup. 6011, New Haven Judicial District, Healey, State Referee, June 22, 1992. However, as Judge Healey stated, "the operation of this act contemplates but one title and one root of title and is not applicable to resolve a contest between two competing chains of title, as is presented here with each party claiming a root of title." Id. Thus, it is apparent that, in this case, MRTA is of no help in resolving the ultimate issue of ownership via record title. A title search performed on either chain, pursuant to the provisions of said Act, would not have ordinarily alerted a professional title searcher that a conflict existed. As noted, in this case, the resolution of this title conflict requires an examination of deeds executed nearly two centuries ago.
As Judge Healey wisely concluded in Medway, this court deems it unnecessary to discuss each and every instrument of conveyance that one finds along the length the chains of title of the parties. As noted, this court has examined each and every instrument submitted as exhibits, in particular, those instruments referred to by the parties in their briefs as material to the resolution of the ultimate issue of record title.
VI. THE PORTER CHAIN OF TITLE A. The Recorded History
Robert Moran has been an attorney for thirty-four years. Sixty percent of his practice consists of real estate law; he performs ninety-five percent of his own title searches. He was retained by and testified for the plaintiff. He stated that, after reviewing the pleadings, thereby understanding the competing claims, he performed a title search of both the plaintiff and RMM chains of title. He located fourteen recorded documents ( plaintiff's #1-14) that comprised the Porter chain of title and that covered from 1816 to 1986. This court has identified plaintiff's #55, and defendant's #8, 13-16 as relevant to an understanding of the Porter chain. Moran traced the disputed property back to July 25, 1816, which was the date that Elias Taylor, the common grantor for both chains, conveyed thirty-six acres, in two separate parcels, to Ebenezer Thomas. Plaintiff's #1 and 1A. Although he described the first piece, consisting of thirty-five acres by abutting owners on all sides, Taylor described the second one-acre piece as follows:
Also, one acre of wood land adjoining to the North side of the first described piece being about thirty rods long East and West and to be equal width at the East and West ends.
Moran concluded that the second piece described in the Taylor deed, was the disputed piece. Although no reference is made in subsequent conveyances to the one-acre of woodland, ( plaintiff's #2-4), in 1852, thirty-six years thereafter, Lucinda Beeman placed the one-acre piece at the northwest corner of the first piece and, in doing so, made reference to the Taylor deed. Plaintiff's #5. After describing a fifteen-acre piece, as, "fifteen acres and twenty-two rods," Lucinda, in a deed to Edwin R. Beeman, dated March 11, 1952 and recorded at Vol. 10, Page 259, described the one-acre piece as follows:
Also, one acre adjoining said land on the northwest corner about 30 rods long East to West to be of equal width at the East and West ends and for reference had to Thomas deed from Elias Taylor . . .
Moran testified that, since all the witnesses agree that the first piece is south of the stone wall, Lucinda placed the one-acre of woodland north of the stone wall. From his examination of the Warren land records, Moran concluded that, from 1852 to date, the parcel north of the stone wall was not deeded out of the Porter chain. Eventually, the sixteen acres deeded to Lucinda was reduced to thirteen acres when Voisard took title in 1921. Plaintiff's #10. Out of the real property that Voisard received, he deeded to the plaintiff's parents that 10.82-acre parcel, which, the plaintiff claims, included the 1.728 acres that comprise the disputed property.
During his testimony, Moran made reference to the so-called, "Smith Map," plaintiff's #36, that was prepared by an abutting owner's surveyor in 1952, as confirmation of Moran's finding that Julian Voisard, the source of the plaintiff's root of title, owned the parcel north of the stone wall. The Smith map is entirely consistent with a map that formed the basis of the 1954 conveyance from Voisard to the Porters and confirms, according to Moran, Voisard's ownership of the parcel north of the stone wall, which abuts the northwest corner of the property owned by Porter south of the stone wall. In this regard, both the Porter map ( plaintiff's # 41) and the Smith map, the later showing land west of Porter, identify the westerly boundary of the parcel north of Porter's initial 5.18 acres as being 184.34 feet in length. The plaintiff also called Robert Bolte, who has been a professional title examiner for thirty years, having searched, "thousands" of titles in Litchfield County, including fifty to sixty in the town of Warren. Bolte, after performing a title search wholly independent of that of Moran, confirmed Moran's findings. Bolte concluded that the thirty-five acre piece referred to in the Thomas deed encompassed property from Curtis Road north to the stone wall, as shown on the Porter map, and south of old Lot 9B, as shown on the Sheehan map, plaintiff's number 38. Bolte also concluded that the one-acre piece referred to in the Thomas deed was north of the stone wall, at the northwest corner of the thirty-five acre piece, as located by Lucinda in 1852. Plaintiff's #5. Bolte conceded that the deeds between the Thomas deed and Lucinda's deed ( plaintiff's #1 through #4), do not enable one to identify the location of the one-acre woodland piece along the stone wall, which all agree is the northerly boundary line of the first piece described in the Thomas deed, a stone wall in excess of one thousand feet in length from east to west. He also conceded that the inability to place the one-acre piece along said wall is not corrected by plaintiff's # 6 (Edwin Beeman to Hayes in 1893) through plaintiff's # 10 (Alice Strong to Voisard in 1921). Bolte, as did Moran, relied on Lucinda and confirmed that it was Lucinda's deed in 1852 that enabled him to place the disputed property at a specific location north of the stone wall. Bolte stated that the deeds in the Porter chain, from the Thomas deed (1816) to the Voisard deed (1921), all contain the disputed piece and were, indeed, conveyances within that chain of title. He pointed out that, in addition to the Porter map that depicts ownership of the disputed property by Voisard prior to the 1954 conveyance thereof to the Porters, and the 1952 Smith map, confirming the same, the earlier Porter map (1937, plaintiff's #37), upon which the conveyance of the initial 5.18 acres was based, also depicted Voisard as the owner of the parcel north of the stonewall. CT Page 9640
The court is well aware that the Smith map and Porter map were prepared by the same surveyor.
There was no testimony offered by either party as to when or by whom the stone wall was constructed, nor was there any evidence as to the purpose it served.
B. The Kinks In The Chain
The legal effect of the description of the one-acre of woodland, the second piece described in the Thomas deed, and the legal sufficiency of the placement by Lucinda of said piece at the northwest corner of the first piece described in the Thomas deed, is, in this court's view, the central question to be addressed in the resolution of the claim by each party of ownership of the disputed piece by record title. Therefore, if the Thomas deed, as clarified by Lucinda's deed thirty-six years later, effectively conveyed title to the "one acre of woodland . . . thirty rods long East to West to be of equal width at the East and West ends," adjoining the first piece, said parcel would be located to the north of the stone wall. Thus, a portion of old Lot 9B would be owned by the plaintiff. If, on the other hand, by virtue of some applicable legal principle or doctrine, the conveyance of the one-acre of woodland to Taylor in 1816, failed and/or Lucinda's attempt to locate the parcel at the northwest corner of the fifteen acre parcel, by virtue of some applicable legal principle, was ineffective to do so, then, as RMM argues, the conveyance of the one-acre piece of woodland, referred to in the Thomas deed, failed and could not be corrected or clarified by Lucinda. This would result in the one-acre parcel passing to the RMM chain, when Thomas, the common grantor, conveyed the remainder of his land to Daniel Beeman, Jr. in 1939. Plaintiff's #54. Thus, the central question that impacts the record title issue will be resolved by this court, either finding that the one-acre woodland piece was never in the Porter chain due to a failed conveyance, and therefore, accidentally, as it were, wound up in RMM chain or finding said piece, although not adequately described by Elias Taylor, nonetheless, is in the Porter chain as a result of Lucinda's clarification in her deed to Edwin R. Beeman thirty-six years later. This court, along with the applicable law will hereinafter address in detail this core issue.Other sub-issues have been raised by RMM, which demonstrate certain kinks in the Porter chain, notably, the lack of an adequate explanation, other, than by reference to "country conveyancing", as to how the one-acre of woodland, thirty rods by thirty rods, which was, based on Taylor's description, a rectangle measuring 495 × 88 feet, grew into an irregular shaped quadrangle, measuring, on both the Porter and Sheehan maps, in excess of 600 feet on the northerly boundary, over 500 feet to the south, nearly 100 feet to the east and 184 feet to the west. Compare plaintiff's #41 to plaintiff's #38. The disputed property is seventy-five percent larger and of an entirely different shape than that described as the second piece in plaintiff's #1 and plaintiff's #5.
"Country conveyancing" is a term that all of the expert witnesses used to describe the uncertainties which often appear in acreage designations in ancient deeds that convey undeveloped real estate in rural areas.
One rod = 16 1/2 feet; one link= 7.92 feet.
Also, Riordan during his testimony, demonstrated, by plotting the relevant acreage of conveyances into Julian Voisard and conveyances out, that Voisard received 13.12 acres, but conveyed out 14.89 acres, the excess being 1.77 acres, which is the size of the disputed piece. See defendant's #21. RMM, therefore, argues that since one cannot effectively convey that which one does not own, Porter could not have taken title to any real property north of the stone wall.
RMM called attorney David Miles, who in addition to supporting RMM's claim of record ownership, attempted to point out additional kinks in the Porter chain, which he claimed were evident by close examination of two deeds in the Porter chain of title, plaintiff's #7 and 8, between September 1894 and September 1900. Thus, in the deed from Noble Strong to Alice Strong ( plaintiff's #8), Noble conveyed, as all witness agree, the same land that he received from Edward Hayes ( plaintiff's # 7), yet the Hayes deed identifies, "about sixteen acres more or less," while the Noble Strong deed reduces it to, "fifteen acres more or less" all of which Riordan plotted below the stone wall. See defendant's #18. In 1919 Alice conveyed nearly two acres of the land she received from Noble to Charles Johnson ( plaintiff's #9) and in 1921, Alice conveyed the remainder of said land to Voisard, Porter's immediate grantor. Plaintiff's #10.
Both Riordan and Miles pointed to the one thousand-foot stone wall as strong evidence of the boundary line between the parties; Riordan added that, when he walked the property, he also located a so-called Virginia rail fence as an indicator of a boundary line. Miles pointed out that, after Lucinda's deed, from 1852 to the present, no instrument, in the Porter chain wakes any reference to any property north of the wall, consisting of one-acre, thirty rods equal, East to West.
V. THE RMM CHAIN A. The Recorded History
Attorney Miles was retained by RMM to do a title search. As did Moran, he searched both chains of title. He is an attorney with thirty-four years of experience. Although seventy percent of his practice involves real estate law, he relies on others to do most of his title searches. Unlike Moran and Bolte, Miles was very defensive on cross examination. Miles searched both titles back to Elias Taylor, the common grantor, who, in 1798 purchased a 154.75-acre farm from Peters. As earlier described, in 1816, Taylor, conveyed, in two separate parcels, sixteen acres to Thomas ( plaintiff's #1), who is in the Porter chain, and in 1839, conveyed the remainder of the Peters farm, in two separate parcels, to Daniel Beeman, Jr., in the RMM chain. Plaintiff's #54. In addition to plaintiff's #54, 56, and 57, relevant recorded documents in the RMM chain include plaintiff's 60 and 61 and plaintiff's 15 through 34. Those documents reflect 164 years of recorded history on the land records in the town of Warren.
In searching the RMM chain of title, Moran initially went back to a 1905 deed from Charles Ohmen to Mary Brown. Plaintiff's #15. It was not until after his deposition that he reviewed the three nineteenth century deeds in the RMM chain. Plaintiff's #54, 56 and 57.
As to the core question, i.e., the legal effect of the Thomas deed, to convey the one-acre of woodland into the Porter chain, Miles testified that the description employed therein created such an ambiguity as to negate Taylor's effort to convey said piece to Thomas. Said attempt having failed, when the remainder of the Peters farm was deeded by Taylor to Daniel Beeman, Jr., the one-acre woodland piece was conveyed with it and thus entered the RMM chain, where it has remained, in an unbroken chain, to the present day. According to Miles, Lucinda's attempt to locate the one-acre piece at the northwest corner of the fifteen acre piece, first described in the Taylor to Thomas deed, failed, as thirteen years prior thereto, said piece had passed to the RMM chain and was thereby lost to the Porter chain forever.
By 1909, all but 41 1/2 acres of the original one hundred plus acres that entered the RMM chain, had been conveyed out of that chain. Miles identified the disputed property as that one and one half acre "more or less," piece described in a warranty deed from Charles Ohmen to Estella Mooney Brown, dated September 1, 1906 and recorded at Vol. 12, Page 471 of the Warren land records. Plaintiff's #16. One year earlier, Ms. Brown received a 40-acre "more or less" piece from the same grantor. Plaintiff's #15. The 41 1/2 acres were, according to Miles, conveyed intact down through the RMM chain from 1909 ( plaintiff's #17) to 1950 ( plaintiff's #25), when, after the Young map ( plaintiff's # 35) was prepared, it became 42 1/2 acres and was ultimately encompassed by the subdivision created by Sheehan in June 1972 ( plaintiff's #39) and more clearly defined in November 1973. Plaintiff's #38.
Apparently, there were no subdivision regulations in Warren when the 1973 map was recorded.
B. The Kinks
It is noteworthy, however that both subdivision maps are dependent upon the 1936 Young map, which shows Winifred Young as the owner of 45.7 acres, although in 1925 she purportedly received 41 1/2 acres only from her grantor, Samuel Brown. Plaintiff's # 20. Herein lies the largest kink in the RMM chain, which precipitated numerous, "red flags" in that chain that were identified and testified to by Attorney Moran and Bolte. Miles acknowledged some of these flags, however, he preferred the color yellow.
As noted, the Young map was created in 1936 and depicts all of the real property that Winifred received from Samuel Brown by warranty deed dated May 6, 1925 and recorded at Vol. Page 350 of the Warren land records. Plaintiff's #20. According to that deed, Brown conveyed to Young, "forty-one and one-half (41 1/2) acres, but according to the map, prepared by Douglas Little surveyor, Young actually owned 45.7 acres. The map is recorded at the Warren town clerk's office as map #52. Thus, the Young map, appears to claim that Winifred owned four and one-half acres more land than had been deeded to her by Brown. On March 21, 1938, Winifred entered into a Bond For Deed with HVIA. The document, which is plaintiff's #21, anticipates the sale, by Young and the purchase by HVIA of all the real property shown on the aforesaid map, i.e., 45.7 acres. When, however, that planned conveyance took place on April 21, 1938, the warranty deed from Young to HVIA made no reference to said map and conveyed to HVIA, "forty-one and one-half (41 1/2) acres, more or less." Plaintiff's #22. Curiously the deed was prepared ten months after the recorded Porter map ( plaintiff's #37) and deed ( plaintiff's #11), that identified Voisard as the owner of the property north of the stone wall. In 1941, HVIA conveyed, by warranty deed, the 41 1/2 acres it received from Young to Hoyt and Helen Smith, ( plaintiff's #23), which instrument, as previously noted, excepts from the land that HVIA received from Young, not only a three-acre piece that HVIA had conveyed out in 1941, but, "one and one-half (1 1/2) acres of land, more or less, claimed by Julian P. Voisard, which is to be conveyed to Hoyt D. Smith and Helen S. Smith by separate instrument." Immediately thereafter, HVIA, by quitclaim deed, conveyed the one and one-half acres to the Smiths. Plaintiff's #24. The description is taken from the Young map and the property described in the quitclaim deed is the configuration of old Lot 9B, however, the deed makes no reference to the Young map! On July 22, 1950, Hoyt, his wife having predeceased him, as an individual, conveyed, by warranty deed, his one-half interest to, "42 1/2 acres, more or less," to Charles Augenthaler, however Hoyt excepts from said conveyance, "one and one-half (1 1/2) acres, more or less, which is to be conveyed to the grantee herein by the grantor herein by separate instrument." As an individual, he then immediately conveyed the one and one-half acre piece, by quitclaim deed, to Augenthaler. As administrator of his wife's estate, Smith, by administrator's deed conveyed his wife's one-half interest in the entire 42 1/2 acres to Augenthaler, including both parcels in one description. Plaintiff's #25 and 26. Fiduciary deeds, just as quitclaim deeds, although they accomplish the intended conveyance, do so without warranting title to the land conveyed.
In this regard, Moran testified that in thirty-eight years of searching titles he had never seen a grantor quitclaim a parcel to a grantee that had been excepted from a warranty deed to the same grantee, due to a statement in the warranty deed that the property subsequently quitclaimed to that grantee, was claimed by another. A quitclaim deed is just as effective as a warranty deed to convey title to the property described therein. The use of the quitclaim deed, under these circumstances, however, is certainly suspect and is viewed by this court as, "a red flag."
In Johnson v. Sourignamath, 90 Conn.App. 338, Footnote # 12, (2005), the Appellate Court stated: "We note here that a map filed in town land records, to be incorporated into a deed such that it becomes part of the chain of title, ordinarily must be certified as accurate by a surveyor and referenced specifically by the deed . . . General Statutes Sec. 7-31. Emphasis added. Internal citations omitted.
Augenthaler conveyed all of the land he received from Smith to Sheehan and King by warranty deed, dated June 12, 1972, and recorded at Vol. 27, Page 435. Plaintiff's #27. The deed conveyed two separate parcels, a 42 1/2-acre piece and a one and one-half acre piece, the latter being the disputed property, and refers to a survey map, recorded as map #186. Plaintiff's #43. The map, however, does not show the second parcel as a separate parcel; there is no line that divides the two parcels shown on the map. Miles conceded, on cross-examination that the above scenario was, "an unusual way to convey." This map was traced from the Young map and so states in its lower right corner. At this juncture, it appeared quite clear to Moran and Bolte that something was amiss, in that neither HVIA, Smith or Augenthaler were convinced that they ever owned the one and one-half acre parcel, north of the stone wall, as described in Plaintiff's #23-27.
Shortly after purchasing the real property from Augenthaler, Sheehan and King caused a subdivision map to be prepared, again, from the Young map, which depicts eleven building lots, including a large Lot #9. Plaintiff's #39. In March 1973, King quitclaimed to Sheehan the same property that he and Sheehan received from Augenthaler, ( plaintiff's #28) who, six months thereafter, further subdivided Lot #9 into Lot #9 and old lots 9A and 9B. Plaintiff's #38. As said subdivision map clearly shows, however, the only lot of the three that did not have access to Sheehan Road, the proposed road shown on said map, was old Lot 9B. Old Lot 9B was landlocked by the developer of the subdivision, father of the third-party defendants. That subdivision map was also dependent on the Young map. Both Moran and Bolte queried as to the reason that a profit-minded developer would intentionally landlock a viable building lot. According to these title experts, such was a strong indication that Sheehan doubted that he had title to old Lot 9B. It is significant, in this regard, that Sheehan did not obtain a right of access to an old Lot 9B, either from the grantee of Lot 9A ( plaintiff's # 60) or the grantee of Lot #10. Plaintiff's #61. Thus, old Lot 9B remained landlocked until Riordan, on behalf of RMM and the Sheehan children, reconfigured Lots 9A and 9B to their present size, shape and dimensions. Plaintiff's # 42. Old Lot 9B was, thus, landlocked from its creation in 1973 until its reconfiguration in December 2002, a total of nearly thirty years, double the time required to establish a claim of adverse possession — an issue to be hereinafter addressed.
Moreover, the deed from Becher to McDermott to old Lot 9A ( plaintiff's #33), reflects a purchase price of $127,500 for a 2.555-acre parcel, while the deed from the Sheehan children to McDermott ( plaintiff's #32) indicates a payment of $50,000 for old Lot 9B, consisting of 1.728 acres. The Becher deed reflects a purchase price of $50,000 an acre which, if was applied to the Sheehan deed, would result in a purchase price of $86,400 for old Lot 9B. Thus RMM, in purchasing old Lot 9B appears to have benefitted from a forty-two percent discount.
After searching, via the Grantor's Index, the links in the RMM chain, from the first appearance of the Young map in 1936, until the recording of the Sheehan subdivision map in 1973, and identifying all of the "red flags" described above, Moran and Bolte concluded that the Young map was erroneous. Since all the subsequent Sheehan subdivision maps were dependent on the accuracy of the Young map, those too, were in error. Since old Lot 9B, according to Moran and Bolte, was erroneously included as a portion of Winifrd Young's land, the error continued and permeated the deed of title to RMM in 2003, sixty-seven years after the error was made.
VI. APPLICABLE LAW A. Quiet Title Action
As noted, both the plaintiff and RMM claim record ownership of the disputed property and have asked this court to settle the title issue, pursuant to General Statutes Sec. 47-31. Subparagraph (f) of said statute defines the court's duty:
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.
Under this statute, each party, who claims record title to the property in dispute, "must prevail on the strength of his own title, and not upon the weakness of his adversary." DeVita v. Esposito, 13 Conn.App., 101, 110 (1987), cert. denied, 207 Conn. 807 (1988). Based upon the evidence that each of the parties is obligated to provide as to the sources through which each is claiming title, it is then the court's obligation, per the statue, to determine, "the exact status of the land," that is the subject of the dispute. The court's judgment then, "must set forth the rights of the parties in it." Spelke v. Shaw, 114 Conn. 272, 283 (1932). "The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title, by clear and positive proof of the adverse possession of the other." Clark v. Drska, 1 Conn.App. 481, 489 (1984). Internal citations omitted. Record title, however, can be proven via the usual civil preponderance of the evidence standard.
B. Interpretation of Ancient Deeds and Maps
In this case, the interpretation of so-called, "ancient deeds," is a critical part of the court's function in resolving the issue of record title. In general, deeds in excess of thirty years of age are deemed to be ancient deeds. Fishbach v. Walker, 1996 WL 106776, Conn.Super., CV920335791 (Barnett, J.), February 26, 1996. Of the fifty deeds examined by this court, only five do not meet that definition. Of the remaining forty-five ancient deeds, twelve date back to the nineteenth century, the most significant being the 1816 Taylor to Thomas deed.
Certain rules of interpretation have been fashioned by Connecticut courts over the years, most of which were recited in Konnicke v. Maiorano, 43 Conn.App. 1, 10-11 (1996):
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.
It is well settled as a rule of the construction of deeds that "[w]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances." The 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. 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.
"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 boundaries, indicates a permanent object, which may be either a natural or artificial one . . . a stone wall is strong evidence of a boundary line. Id., at page 11.
Internal citations and quotation marks omitted.
Thus, it is clear from the above recitation, that the court's primary function in interpreting the language of the deed, ambiguous on its face, is to attempt to determine the intent of the parties thereto. In this regard, it is permissible to consider the surrounding circumstances. The court should also consider every part of the instrument and be aided by the evidence in doing so. Marks v. Matulevich, 2005 Ct.Sup 1725, 38 Conn. L. Rptr. 724, Judicial District of Middlesex, (Silbert, J.), January 31, 2005. "Every word, sentence and provision, if possible, is to have effect . . . Cornfield Point Ass'n v. Old Saybrook, 91 Conn.App. 539, 551 (2005).
When the instrument of conveyance creates an ambiguity, "the grant is ordinarily construed against the grantor and in favor of the grantee, and the grantee may adopt a boundary most favorable to him. Marshall v. Soffer, 58 Conn.App. 737, 743 (2000). Where the meaning of the language contained in the instrument is unclear, the court may consider, "any relevant extrinsic evidence." Lakeview Assoc. v. Woodlake Master Condominium Ass'n., Inc., 239 Conn. 769, 780-81 (1997). "Parol evidence of what was actually turned over to and held by the distributee of real estate may be admissible where the land is described in such general terms as to leave its proper limits open the question." Brooks Bank and Trust Co. v. Dineen, 97 Conn. 536, 540-41 (1922). Evidence aliunde, i.e., outside the record, is necessarily admissible, not only to prove the existence of a parcel referred to by designation (the mill spot), but also to prove the location thereof, and the limits of the property. Id., at page 541. As all of the experts in this case agree, "acreage calls contained in the deed are the least reliable interpretation of the description." U.S. Bank N'L Ass'n v. Palmer, 88 Conn.App. 330, 335 (2005).
General Statutes Sec. 7-31 provides that a certified survey or map that is referred to in a deed, shall be considered part of that deed. Therefore, any specific reference to such a map in a deed, should alert any reasonable title searcher to examine said map to determine what impact, if any, the map might have on the property being searched. McBurney v. Cirillo, et als., 276 Conn. 782, 801 (2006).
VII. THE TAYLOR TO THOMAS DEED
As noted, the core issue, that, in this court's view, is determinative of the question of record title, is whether the ambiguity in the Taylor to Thomas deed ( plaintiff's #1), dated July 25, 1816, relative to the one-acre of woodland was such as to negate the conveyance of that parcel to Thomas, so that the conveyance thereof, as RMM would have it, actually occurred twenty-three years thereafter, when Taylor conveyed the balance of his farm to Daniel Beeman, Jr. If, in fact, due to the ambiguity, the one-acre woodland lot found its way into the RMM chain in this fashion, Lucinda's attempt, in 1852, to place the parcel north of what is now the stone wall, failed, as she would not have owned the parcel at that time. RMM argues that this accidental conveyance is the source and the foundation of the RMM chain and is, therefore, RMM's ultimate root of title.
On the other hand, the plaintiff argues that any ambiguity in the description of the one-acre woodland lot was resolved and cured by Lucinda's placement, thirty-six years after the Taylor to Thomas deed, at the northwest corner of the first piece described in the 1816 deed. Furthermore, the plaintiff argues that Elias Taylor certainly did not intend to convey said parcel to Daniel Beeman, Jr. in 1839, as he knew he didn't own the one-acre woodland lot, because he conveyed it to Ebenezer Thomas in 1816. The plaintiff argues that RMM's theory of record title, not only ignores the expressed intent of the parties, but assumes that the grantors and grantees had no idea as the location of the land that they were buying and selling.
A. RMM's Claim
In support of its title theory, RMM cites several treatises and cases that, it is asserted, would mandate that this court find that Taylor's attempt to convey the one-acre of woodland to Thomas failed, as said conveyance, due to the inability to locate the east and west boundaries along one thousand feet of what is now a stone wall, located to the north of the first thirty-five acre parcel, was void. Thus, RMM refers to 1 Swift's Digest, at page 22, and Thompson on Real Property, Sec 3020 and 3021, both of which require deed descriptions to be such that one is able to identify the location of the property described and provide that the failure to do so, due to a vague description, has the effect of voiding the attempted conveyance, due to the inability, to any certain degree, to determine where the property lies. The third-party defendants cite 21 Am.Jur, Deeds, Sec. 42, page 103, for the proposition that a deed that fails to adequately locate a tract of land, is ineffective as a legal conveyance. A deed must provide, "a key by which a beginning point can be determined," and must be reasonably exact to be effective. As to Lucinda's attempt to identify the exact location of the one-acre woodland lot, at the northwest corner of the thirty-five-acre parcel, referred to in the Taylor to Thomas deed, RMM claims that Lucinda, without any reason, or foundation, literally, plucked the one-acre " floating parcel" and placed it, without any justification for doing so. Moreover, RMM argues that there was no evidence that anyone conveyed the one-acre of woodland to Lucinda.
As additional authority to support their theory of record ownership of the disputed parcel, both RMM and the Sheehan children have referred the court to the Connecticut Standards of Title, in particular Standard 10.1, which provides:
The court has attached this standard as an Appendix to this memorandum.
Errors, irregularities and deficiencies in property descriptions in the chain of title do not impair marketability unless, after all circumstances of record are taken into account, a substantial uncertainty exists as to the land which was conveyed or intended to be conveyed, or the description falls beneath the minimal requirement of sufficiency and definiteness, which is essential to an effective conveyance. Lapse of time, subsequent conveyances, the patent or typographical nature of errors or omissions, accepted rules of construction, and other considerations should be relied upon to approve marginally sufficient or questionable descriptions.
There are five comments to this standard. The defendants argue that Comment 1., referring to vague and uncertain descriptions and Comment 3., referring to the impossibility of identifying the land conveyed due to a, "patently . . . inaccurate" description, supports their position that, due to the inability to locate the one-acre woodland lot at an exact point north of the first parcel conveyed, the vague description of the second parcel voided its conveyance to Thomas. Thus, Thomas never received the one-acre woodland from Taylor. Additionally, Comment 3. would preclude the introduction of parol evidence to locate the parcel, due to the vague and, therefore, ineffective description. Thus, according to the Connecticut Standards of Title, Lucinda would not be permitted to place the one-acre of woodland at the northwest corner of the first parcel, thirty-six years later.
B. The Plaintiff's Response
The plaintiff correctly points out that the court is not bound to follow the standards. "The standards of title establish the custom in the legal community . . . [but] are not controlling, contractually or otherwise." Cardillo v. Cardillo, 27 Conn.App. 208, Footnote #5 (1992). The plaintiff reminds the court that the standards, which were first adopted by the Connecticut Bar Association in 1937, over one hundred years after the date of the Thomas deed, provide, in their preface, that they are relevant only if they were approved at the time that the marketability of the instrument of conveyance is being determined, i.e., 1816. Plaintiff, however, argues that if the court is to be guided in any manner by the standards in its determination of the core issue, Standard 10.1 itself and Comments 1. and 4. support his theory of record title. Standard 10.1 provides that one may look to, "subsequent conveyances" and "other considerations" to give effect to questionable descriptions. Comment 1. provides that one may rely on "improved descriptions" that appear in "later conveyances" to clarify an imperfect description. Comment 4. provides that, "extrinsic evidence" can be employed in order to "give effect" to a vague description in a deed. Thus, the plaintiff argues, if the court is to be guided by standard 10.1., it is perfectly consistent with the provisions therein for the court to look to Lucinda's 1852 deed, in order to find that the one-acre of woodland is located at the northwest corner of the first piece described in the Thomas deed and, therefore, is, at the very least, part of old Lot 9B.
C. Discussion
On this core issue, as to the one-acre woodland lot which, all parties agree, is north of what is now the stone wall, this court finds that the plaintiff's theory of record title is the more persuasive one. The court agrees with the plaintiff that a reading of the Thomas deed ( plaintiff's #1), as clarified by Lucinda's deed ( plaintiff's #5), clearly places said parcel into the Porter chain. The Court agrees with the plaintiff, that RMM's theory of record title, i.e., that Daniel Beeman, Jr. received the one-acre of woodland, by accident, from Elias Taylor in 1859, presupposes that the parties did not know what they owned or what they conveyed to others.
First, there is no mention of any stone wall as being the northerly boundary of the first parcel described in the Taylor to Thomas deed or in any of the three subsequent deeds between that deed and Lucinda's deed. See plaintiff's #2-#4. There is no mention of a stone wall in the Taylor to Daniel Beeman, Jr. Deed. Plaintiff's #54. Thus, reliance upon the location of a fixed monument to resolve the core issue is not possible. See Comment 2. of the Standards. Koennicke v. Maiorano, supra, 43 Conn.App. 10.
Second, all of the grantees from Thomas to Lucinda were Beemans. The grantee who, according to RMM, received the ultimate root of title to RMM's chain, was also a member of the Beeman family. Lucinda's grantee was also a Beeman. An inference may certainly be made that, in 1852, the one-acre of woodland, having been in the Beeman family for thirty-six years, Lucinda knew where it was located. Moreover, Lucinda identified the fifteen acres that all agree is below what is now the stone wall, as, "15 acres 22 rods," indicative that she had commissioned a survey of her share of the land conveyed from Thomas to Daniel and Milon Beeman in 1817 ( plaintiff's #2), thirty-five years prior thereto.
The thirty-six acres referred to in plaintiff's #2 was reduced to sixteen acres by the time Lucinda received the property. All parties agree that the twenty acres conveyed prior thereto are located south of Curtis Road.
Thirdly, Elias Taylor, in 1816, clearly intended to convey the one-acre of woodland to Ebenezer Thomas. He, therefore, obviously, did not intend to convey that parcel to Daniel Beeman, Jr. in 1839, as Taylor knew that he had previously conveyed the parcel to Thomas.
Fourth, consistent with Standard 10.1 and the comments cited by the plaintiff and, given the practical considerations discussed herein, Lucinda, in a subsequent conveyance, appropriately, corrected and improved upon the, "less than perfect" description in the Taylor to Thomas deed, employing historical family knowledge and, apparently, professional assistance in the process.
Finally, it is noteworthy that the MRTA, concededly inapplicable in resolving the core issue, nonetheless, provides that a grantee who claims an interest in a parcel, the description of which is, in the initial instrument of conveyance, nonspecific and vague, may assert that interest, so long as it is within forty years of the initial nondescript conveyance. Johnson v. Sourignamath, supra, 90 Conn.App. 395 (2005). The vague description contained in the Thomas deed in 1816, was clarified and the location of the one-acre of woodland specifically identified by Lucinda in 1852, thirty-six years thereafter.
This court finds that, as to the one-acre woodland parcel, referred to in the Taylor to Thomas deed ( plaintiff's #1) and the Lucinda Beeman to Edwin R. Beeman deed ( plaintiff's # 5), said parcel entered the Porter chain via the 1816 deed, has remained in the Porter chain ever since, is, at the very least, part of old Lot 9B and is owned by the plaintiff. The court, therefore, rejects RMM's theory of record title to said parcel and finds that the plaintiff has proven, by a fair preponderance of the credible evidence, his record title to said parcel. He has done so by the strength of his own title.
In arriving at its decision on this core issue, the court is mindful of the testimony of Attorney Stewart Bohan, a respected expert in the marketability of titles, who was called by RMM. Attorney Bowen testified that he examined all of the relevant deeds presented to him by RMM's trial attorney. He stated that the Thomas deed was ineffective to pass title to the one-acre woodland piece, i.e., the floating parcel, and could not be connected by Lucinda, as her attempt to do so came too late because Lucinda, "was not a successor to the piece." Bohan agreed with Miles that the attempt by Taylor to convey the one-acre parcel to Thomas in 1816 failed, thus, when the remainder of Taylor's farm was conveyed to Daniel Beeman, Jr. in 1839, the one-acre woodland lot went with it, thereby entering the RMM chain. For all of the reasons cited above, this court disagrees with that scenario of record title and will not void a deed nearly two centuries old, and, thereby, disrupt two hundred years of recorded land titles in the process. "It is well settled that the trier of fact can disbelieve, any or all of the evidence proffered . . . including expert testimony and can construe such evidence in a manner different from [either of] the party's assertions." State v. Cuesta, 68 Conn.App. 470, 483, cert denied, 260 Conn. 914 (2002). Internal quotation marks omitted. "[T]he fact finder is free to accept or reject each expert's opinion in whole or in part." Santa Maria v. Klevecz, 70 Conn.App. 10, 16 (2000). Internal quotation marks omitted. This court agrees with the admonition of the plaintiff's attorney that, "[t]he notion that the land records, should, by judicial fiat, be retroactively amended for the past 190 years should be rejected," at least, under the historical facts and circumstances presented by this case.
Attorney Bohan did not examine the land records in Warren.
Plaintiff's Reply Brief, dated November 28, 2005, page 23.
VIII. REVISITING THE KINKS A. In General
Now that the court has addressed and resolved the core issue and has found that the plaintiff owns, at the very least, one-acre north of the stone wall, the court will deal with the sub-issues raised by the parties, which have been referred to herein as the "kinks" in the chain. It should be clearly understood, however, that the factual issues raised by RMM relative to the kinks in the Porter chain, once the court has determined record ownership of the one-acre parcel referred to in the Thomas and Lucinda deeds, apply to the weakness and not to the strength of RMM's title, which was wholly dependent on RMM's theory of record ownership, a theory rejected by this court. Moreover, as to the weakness of title issues, the kinks in the RMM chain, as previously discussed herein in detail, from the erroneous Young map, through the numerous unconventional conveyances, to the intentional abandonment of old Lot 9B as a building lot, in this court's view, far outweigh, individually and collectively, the alleged kinks in the plaintiff's chain of title. Nonetheless, the court, in deference to the defendants, will address the factual issues relative to the alleged kinks in the Porter chain.
B. The Size and Shape of the Disputed Property
The defendants argue that the plaintiff cannot explain how the one-acre of woodland, described in the Thomas and Lucinda deeds, "morphed" into the 1.728-acre parcel, which is the disputed piece. As each of the experts called by RMM (Miles, Riordan and Bohan) confirmed, the 1.728-acre parcel bears no physical resemblance, in shape or dimensions, to the 495' × 88' parcel described in those ancient deeds. See defendant's #20.
It certainly does not stretch the concept of country conveyancing too far, to find that a grant of one-acre of woodland, "being about thirty rods long, East to West and to be equal width at the East and West ends," would, over a period of nearly two centuries, become, as identified in numerous deeds and maps, the 1.728-acre disputed piece. As the plaintiff correctly points out, the one-acre woodland lot evolved into what is now known as old Lot 9B and is shown on maps in both chains. Both the plaintiff and RMM agree on the current size of the disputed piece, its current location and its current dimensions. As noted, all parties and our courts agree that the acreage call is the least reliable in determining the actual size of real property described in instruments of conveyance. In fact, from the HVIA to Smith deed in 1941 ( plaintiff's #23) onward, the disputed property is described as " one and one-half acres, more or less." That parcel has been the subject of controversy ever since. It's present configuration, i.e., that of old Lot 9B, first appeared on the Porter map in 1954 ( plaintiff's #41). The parcel is also referred to, shown and described in numerous deeds and maps, all of which have been previously discussed herein.
See plaintiff's #35, 36, 38, 39, 41 and 42; also plaintiff's # 24, 26, 27, 32, 34 and 58.
C. Four Deeds, From 1894 (Hayes to Strong) to 19221 (Strong to Voisard)
The defendants find some significance in the fact that, in 1894, Hayes deeded a sixteen-acre parcel to Noble Strong ( plaintiff's #7), yet Noble, in 1900, when he deeded all of the land he received from Hayes to Alice Strong, ( plaintiff's #8), reduced the acreage to fifteen acres, " more or less." Alice was Voisard's immediate grantor ( plaintiff's #10), who conveyed thirteen acres, "more or less" to Voisard, as she had earlier conveyed, "about" two acres to Charles Johnson ( plaintiff's #9). The fifteen acres that Alice received, according to Riordan, is entirely below the stone wall. Thus, it is asserted by the defendants that Voisard received land below the stone wall only. Since Voisard conveyed a portion of his land to the plaintiff's parents, the plaintiff cannot, according to the defendants, own property north of the wall.
First, Attorney Bohan attributed, "no significance" to the reduction by Noble of the sixteen acres to fifteen. Second, all agree that Noble conveyed to Alice all of the land that he received from Hayes.
As a further argument that Alice Strong, and, therefore, Voisard, and, therefore, Porter, did not own any land north of the stone wall, the defendants have urged the court to carefully compare the language in the deed from Alice to Johnson ( plaintiff's #9) with that in the deed from Alice to Voisard ( plaintiff's #10). The defendants find it significant that Alice, in the latter deed, revised her description and omitted from the eastern call, an owner to the north, Samuel Brown. The defendants argue that, if Alice believed that she owned land north of the stone wall, she would not have made that omission. As the plaintiff points out, however, Alice, in her deed to Voisard, additionally, omitted any reference to the two acres that she previously conveyed to Charles Johnson. All of the experts, including Miles, agreed that ancient deeds, may contain errors. Our courts have given effect to deeds containing erroneous descriptions, when other circumstances surrounding the execution of the instrument enable one to identify the location of the land conveyed. Loeb v. Al-Mar Corp. 42 Conn.Supp. 279, 289 (1991), aff'd 224 Conn. 6 (1992). This court does not view this argument as proof that Alice, "intentionally and explicitly," excluded old Lot 9B from her conveyance to Voisard.
See RMM brief dated November 10, 2005, page 18.
D. Voisard In and Voisard Out
Both Miles and Riordan, on behalf of RMM, presented testimonial and documentary evidence in an attempt to demonstrate that Julian Voisard conveyed out more land than he had received, the difference amounting to approximately 1.8 acres, the acreage that comprises the disputed piece.
Thus, the defendants argue that the disputed piece was not acquired by Voisard in 1921, and, therefore, could not have been conveyed by him to the plaintiff's parents in 1954.
Riordan's portrayal of the defendant's argument in this regard is contained in defendant's #18 through #21, which are acetate overlay plottings of sixty-two years of conveyances in the Porter chain, from Noble to Alice Strong in 1900 ( plaintiff's #8) to a certificate of devise from the estate of Julian Voisard in 1962. Riordan claims, based upon his ground survey and a computerized plotting of the first piece described by Lucinda Beeman in her deed to Edwin W. Beeman ( defendant's #19), and the fifteen acres referred to in the Noble to Alice Strong deed ( defendant's #18), that Alice received property south of the stone wall and received no land north of the stone wall. Having then conveyed 1.93 acres to Johnson, what remained, i.e., 13.12 acres, then was conveyed by Alice to Voisard, all of said land being below or south of the stone wall. Riordan then plotted all of the conveyances by Voisard, including the two conveyances to the Porters (1937 and 1954) conveyances to Johnson (1932), Schragle (1956) and the remainder of Voisard's land received by his widow as shown on the assessor's map ( plaintiff's #40) as Lot #20. See defendant's #21. Riordan then added the total acreage referred to in the respective deeds and map and arrived at 14.89 acres, allegedly deeded out by Voisard and his estate. He then subtracted 13.12 from 14.89 to arrive at 1.77, which he determined was the disputed parcel. Thus, via this pictorial analysis, Riordan concluded that Porter actually received 9.09 acres from Voisard in 1954, not the 10.82 acres referred to on the Porter map ( plaintiff's # 41), and in the Porter deed ( plaintiff's #12). Since Voisard did not own the 1.7-acre parcel that was the difference, Riordan then concluded, it must be owned by RMM.
This court, however visually impressive Riordan's analysis appears on its face, has determined that the plaintiff holds record title to the disputed piece. Moreover, this court must consider the bias and motivation behind the Riordan testimony, as his credibility is certainly compromised by his failure to advise Morrill of the conflicting property claims before she purchased old Lot #9B and constructed a dwelling thereon. He may well be at risk to be targeted by Morrill and RMM for a claim of professional negligence; his testimony must, therefore, be viewed in that light. In land title disputes, where the court receives, from professionals, strongly conflicting evidence, it is the court's function to assess the credibility of all witnesses, including expert witnesses. The court is free to, "believe all, some, or none of the testimony of [any] expert." Palmieri v. Cirino, 90 Conn.App. 841, 847 (2005).
The "Voisard in, Voisard out" argument advanced by the defendants, not only presupposes that Voisard received exactly 13.12 acres from Alice Strong, but that every conveyance out by Voisard was exactly the acreage indicated by the instrument of conveyance. That argument also assumes that the acreage shown on the assessor's map as part of Julian's estate, was exactly the acreage indicated, i.e., two acres. As often stated herein, and as agreed to by all of the experts in this case, acreage is the least reliable basis for resolving land title disputes. Moreover, an excess of 1.77 acres relative to land originally understood to be 13.12 acres, constitutes an excess of 13.5%, certainly well within the concept of country conveyancing.
Riordan's map shows Voisard's widow owning 1.95 acres. Defendant's #21.
Furthermore, as the plaintiff points out, Voisard sold a total of 10.82 acres to the Porters, as depicted on the Porter map and described in the Porter deed. Whether, in 1954, Voisard owned thirteen acres or fifteen acres, he owned, at least, the 10.82 acres that he conveyed to the Porters, who, at the time of said conveyance, were his friends and his neighbors for seventeen years. Whatever land Voisard may have sold or retained until his death is irrelevant to the issue of what he owned when he conveyed the 10.82 acres to the Porters.
Once, however, the core issue has been decided, and it has been determined that the one-acre of land referred to in the 1816 Thomas deed went into in the Porter chain, the, "Voisard in, Voisard out," title theory is, for the purposes of the issue of record title, anti-climatic, as the strength of the RMM title is dependent upon the Taylor to Beeman deed ( plaintiff's #54), effectively passing the title to said parcel into the RMM chain. The court agrees with the plaintiff that RMM cannot prove record title to the disputed property by this means.
E. Local Assessor's and Building Department Records
Plaintiff's #40 is that portion of the town of Warren assessor's map, that shows the land owned by each of the parties, for which local real estate taxes are assessed. The disputed 1.73-acre parcel is shown as Lot #27 and the land owned by Porter's is shown as Lot #19 on said map. The plaintiff called the Warren building official to establish the fact that RMM, as the owner of Lot #27, was granted a building permit to construct a single-family dwelling thereon. Defendant's #12. The assessor referred to the assessor's card ( defendant's # 10) as confirmation that RMM was the assessed owner of old Lot 9B, i.e. Lot #27. All agree, however, that the determination of the record title owner of Lot #27 is up to this court, and is not the responsibility of local officials. An examination of the acreage shown on the assessor's map, as to Lot #27 (1.73 acres) and Lot #19 (10.82 acres) graphically demonstrates that both the plaintiff and RMM are being taxed by the town of Warren on the disputed parcel, for, if the plaintiff does not own the 1.73 acres shown on the 1954 Porter map, his assessable land would consist of 9.09 acres only. The number of years, that both parties have been taxed on the same piece of land is unknown to this court and, most likely, to the parties. That issue will be up to the parties and town officials to resolve.
IX. ADVERSE POSSESSION A. Applicable Law
Each party has asserted in their pleadings a claim of adverse possession. Each has urged the court, in the event that the court finds record title, to find that the party found to have record title has been divested by the other of the ownership of the property and has, therefore, acquired equitable title by adverse possession.
A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership. Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership. DeVita v. Esposito, supra, 13 Conn.App. 106.
Internal citations omitted.
When adverse possession is claimed, the court, as it has done, must first analyze and determine, who has record title ownership of the disputed piece. Once that issue has been decided, the court then determines whether the doctrine of adverse possession can be applied to divest the record owner of his title. Id. at page 108. Adverse possession must be proved by the party asserting the doctrine, by clear and convincing evidence. Id., at page 111.
In Marks v. Matulevich (CV-02-00993375), 2005 Ct.Sup. 1725, 38 Conn. Law. Rptr. 724, Superior Court, Judicial District of Middlesex, at Middletown, January 31, 2005, Judge Silbert set forth, with appropriate citations to Appellate and Supreme Court precedent, the basic elements necessary to establish adverse possession:
[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. A finding of adverse possession is to be made out by clear and positive proof . . . [C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession. The doctrine of adverse possession is to be taken strictly.
Marks v. Matulevich, supra, at Ct. page 1735.
Internal citations and quotation marks omitted.
For a recent recitation by the Appellate Court of the elements of an adverse possession claim, see Woodhouse v. McKee, 90 Conn.App. 662, 669 (2005).
Judge Silbert, in his analysis, then addresses each of those elements. Citing Lucas v. Crofoot, 95 Conn. 619 (1921), Judge Silbert explained that ouster does not mean to physically evict the record owner; all that is required is that the adverse possessor, "evince a claim of the exclusive right and title" to the disputed property. The use of the land by a would-be adverse possessor, must be "notorious and unconcealed," however, the use must be consistent with "the state of the land." To possess the property, "under a claim of right," the adverse possessor must demonstrate, "the intent to disregard the true owners right to possession." Top of the Town v. Somer's Sportsmen's Ass'n, Inc., 69 Conn.App. 839, 843, cert. denied, 261 Conn. 916 (2002). The adverse possessor must demonstrate a clear intent to use the property as his own, however, "the location and the condition of the land must be taken into consideration and the alleged acts of ownership, must be understood as directed to those circumstances and conditions." Lucas v. Crofoot, supra 95 Conn. 626.
In considering a claim of adverse possession, the court is permitted to consider the concept of tacking. Thus, a would-be adverse possessor may rely on the use of the property by his or her predecessors in title in order to establish continuous possession for the required fifteen-year period.
The authoritative rule of tacking successive possessions for the acquisition of title after fifteen years is found in Smith v. Chapin, 31 Conn. 530 (1863). See Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527 (1967) . . . Privity of estate is not necessary, but rather, privity of possession. `It is sufficient if there is an adverse possession continued uninterruptedly for fifteen years whether by one or more persons. This was settled in Fanning v. Willcox, 3 Day 258 [1808]. Doubtless the possession must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them; but such continuity and connection may be effected by any conveyance agreement or understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of possession in fact.' (Emphasis in original.) Smith v. Chapin, supra, 531-32. Privity of possession is defined as a continuity of actual possession, as between prior and present occupant, the possession of the latter succeeding the possession of the former under deed, grant, or other transfer or by operation of law. (Emphasis in original and internal quotation marks omitted.) Matto v. Dan Beard, Inc., 15 Conn.App. 458, 479-80, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988).
CT Page 9661 Otley v. McCarthy (CV-02-0816358 S, 2003 Ct.Sup. 14033, Superior Court, Judicial District of Hartford, at Hartford, Shapiro, J., December 11, 2003.)
B. As To RMM's Claim
RMM, citing the Top of the Town case, supra, offers, as "powerful evidence" supporting its claim of adverse possession, the fact that RMM has and is currently paying local real property taxes on the disputed piece. As previously herein discussed, however, Porter also has been paying taxes to the Town of Warren on the same piece and, therefore, is likewise entitled to claim equal benefit from said evidence.
While there can be no dispute that RMM, by staking old Lot 9B, digging test holes for the septic system, blasting rock and removing trees, openly, notoriously and under claim of right, possessed said lot, however all of those incidents of ownership did not take place before 2003. Thus, in order to successfully prove adverse possession, RMM must tack on to its time of possession, that by its predecessors in title, i.e., the Sheehan children (2002-2003 by quitclaim deed, plaintiff's #31) and John Sheehan (1973-2002 by quitclaim deed from King, plaintiff's #28). As noted, Sheehan and King received the property encompassing the current subdivision from Augenthaler in 1972. Plaintiff's #27. In fact, RMM claims that it's open, notorious and continuous adverse use of old Lot 9B commenced when Winifred Young, via the Young map, ( plaintiff's #35), "corralled" what ultimately became Lot 9 and old Lots 9A and 9B. Thus, according to RMM, the use by its predecessors dates back to 1936. RMM asserts that Sheehan's use of old Lot 9B is demonstrated, by including said piece in subdivision maps that his surveyor prepared and recorded on the Warren land records in 1972 and 1973. Plaintiff's #38, 39 and 43.
RMM also points out that, despite being aware of the property dispute between the Porters and himself, and in defiance of Porter's legal position communicated to Sheehan by his attorney, Sheehan, nonetheless, proceeded to build and market the subdivision containing the disputed piece, while the Porters followed the advice of their attorney and did nothing. Sheehan, however, after consultation with his attorney, chose to landlock old Lot 9B.
Based on the above analysis, RMM claims that, at least from 1972 until the sale of old Lot 9B to RMM in 2003, a period of thirty-one years, Sheehan's use of old Lot 9B was open, visible and exclusive, under a claim of right, and with the intent to use the property as he saw fit, without any permission and contrary to the express legal claim asserted by the Porters. RMM claims that it has demonstrated adverse possession of old Lot 9B, by clear and convincing evidence and has, consistent with that doctrine, divested the plaintiff of his ownership thereof.
This court, however, is hard-pressed to find, by clear and convincing evidence, that a developer who intentionally and permanently landlocks a building lot in a subdivision, nonetheless, can demonstrate his entitlement to the equitable ownership of said lot, by divesting the record owner of his title via the doctrine of the adverse possession. Sheehan's actions in purposely landlocking old Lot 9B, are clearly indicative of his concerns as to the legitimacy of Porter's claim of ownership and clearly demonstrate that he had serious doubts as to the legitimacy of his own claim that he had title to the disputed parcel. In this court's view, the action taken by Sheehan, in landlocking old Lot 9B, is fatal to any legally cognizable claim of adverse possession.
Moreover, there is no evidence that Sheehan or his predecessors in title used old Lot 9B for any purpose whatsoever. None of the Sheehan children, all of whom are parties to this action, testified or offered any evidence of their father's ownership or use of old Lot 9B. There was no evidence that any of the third-party defendants used old Lot 9B for any reason, or even knew of its location.
This court, therefore, finds that RMM has failed to prove, by clear and convincing evidence, the elements necessary to sustain its claim of equitable title to old Lot 9B via the doctrine of adverse possession.
C. As To The Plaintiff
Since this court has found that the plaintiff is the owner, by record title, of old Lot 9B, a discussion of and ruling on the plaintiff's claim of equitable ownership by adverse possession would appear to be somewhat academic. RMM, however, as did Judge Silbert, in Marks, supra, raises the distinct possibility that this court's finding that Porter has record title to old Lot 9B might be reversed if an appeal were taken. Thus, based on that assumption, and in an effort to address all issues raised by the parties as to the conflicting title claims, the court will now address the plaintiff's claim of adverse possession. Obviously, the same elements discussed above, must be proven by the plaintiff, by clear and convincing evidence.
The plaintiff argues, as evidenced by the Porter map ( plaintiff's # 41) and deed ( plaintiff's #12), that his parents believed that they acquired the disputed parcel in 1954 from Julian Voisard. Thereafter, and certainly for at least fifteen years thereafter, from 1954 to 1969, the plaintiff's parents and family, including the plaintiff, used, occupied, open and exclusively, under claim of right, that portion of their property north of the stone wall, now referred to as old Lot 9B. The plaintiff testified that, as a boy and, later, with his first wife, who predeceased him, he walked the property north of the practice house, entering the parcel through holes in the stone wall. No signs or barriers were erected or clearing of vegetation, as indicia of exclusive possession, was done by him or his parents, as the intention of all the members of the Porter family was to maintain their property, except for a small rear yard and the path to the practice house, in its original, wild, primitive and natural state, which is exactly what they did, that is, until Morrill and RMM engaged in their intensive tree-cutting operations.
The plaintiff cites the language in Lucas, supra, to the effect that in considering the element of acts of, "open, visible possession," such as one claiming ownership of property would perform, a court must view the use of the property by the would-be adverse possessor, in light of the circumstances and conditions of the property itself and in light, therefore, of the intent of the Porter family not to disturb the wild, natural condition of the disputed piece. Although unable to cite a Connecticut case that found adverse possession proven under similar circumstances, the plaintiff has cited the Minnesota Court of Appeals holding in Fife, et al. v. Anderson-Nielson, 2004 Minn.App. Lexis 1080. In that case, the appellate court held, contrary to the neighbor's contention, that an owner's affirmative and intentional act of leaving the wooded shore front area in its natural state, thereby controlling pollution, was sufficient evidence that the owner possessed the property in an open manner. RMM responds that the Minnesota case, is factually distinguishable from this case, as the owner, by keeping the lake woodland in its natural state, was complying with federal and local laws and regulations. RMM also points out that the court further held that the owner's failure to maintain a wooded area to the east, that was not protected by anti-pollution regulations, did not constitute an affirmative act of ownership. RMM argues that there was no evidence that the plaintiff or his parents took any affirmative action that would constitute an outward sign of ownership of the parcel north of the stone wall. In fact, after 1974, Ethel Porter, following her attorney's advice, did nothing to assert her claim of ownership of old Lot 9B. Of relevance to the facts of this case, the Minnesota Appellate Court, citing precedent, added a caveat:
When the use of the land is seasonal in character, the fact that it is not continuously occupied does not frustrate a finding of adverse possession so long as the use is exclusive.
Id.
The plaintiff, therefore argues, consistent with Lucas and Fife, that the Porter family, who made seasonal use only of their cottage in Warren from 1954 through 2003, used the property, including old Lot 9B, as a sanctuary and as a natural buffer to their music; they used said parcel in accordance with its character and its location. The plaintiff further argues that the evidence, clearly and convincingly, demonstrates the continuous use of the disputed property in that manner, not for fifteen years, but for fifty years, prior to RMM's purported purchase thereof. Thus, the plaintiff argues that RMM's action in taking title to old Lot 9B in May 2003, was a nullity, as, many years before, specifically, in 1969, the plaintiff's parents acquired equitable title to said parcel that, once acquired, would be legal and binding on RMM. Boccanfusso v. Green, 91 Conn.App. 296, 308 (2005).
In response to RMM's claim that, in 1936, Winifred Young "corralled" old Lot 9B, via the Young map, the plaintiff correctly points out that the first image of old Lot 9B is shown on the Porter map, which was recorded by the plaintiff's parents in 1954, nearly two decades before a lot of strikingly similar size and shape was shown on the Sheehan subdivision map as old Lot 9B. See plaintiff's #38, dated November 1973.
Since our courts have mandated that the doctrine of adverse possession must be strictly interpreted, Marks, supra, the plaintiff's burden relative to the various elements of an adverse possession claim, may only be met by proving, by clear and convincing evidence, each of those elements. Thus, in addition to proving uninterrupted possession of the disputed property for fifteen years, under a claim of right, with the intent to use and proving actual use of the disputed property as his own, the plaintiff must prove, by clear and convincing evidence, that he and his predecessors in title made use of said property in an open, visible, and notorious manner. Thus, the plaintiff must prove that he used old Lot 9B in the same manner as any owner thereof would make use of his property. By clear and convincing evidence the plaintiff must prove acts, openly and visibly performed, by him or his parents that would be viewed as indicia of ownership of the disputed parcel.
As noted, the plaintiff testified that he was nineteen years of age when his parents received, along with a parcel east of the parcel they purchased from Voisard in 1937, the parcel north of the stone wall. He recalled walking it with his father, and, in later years, with his first wife. The court recalls that the plaintiff mentioned that, from time to time, he would take naps north of the stone wall. Neither the plaintiff, nor his parents ever placed a sign or barrier or cleared any part of the wooded area north of the stone wall, now known as old Lot 9B. Thus, although there was no evidence that RMM or its predecessors in title used the disputed parcel in any manner, other than as a landlocked building lot, shown on a map, the evidence offered by the plaintiff demonstrates, at best, a sporadic use of the parcel north of the wall.
In U.S. Bank National v. Palmer (CV01-0084935 S), 2003 Ct.Sup. 1174, Superior Court, Judicial District of Litchfield, October 21, 2003; aff'd 88 Conn.App. 330 (2005), Judge Pickard rejected a claim of adverse possession, finding that the sporadic uses of the disputed property by the would-be adverse possessor, that included periodic hunting and wood-cutting and occasional posting of a "no trespassing" sign, were inadequate indicia of ownership and that proof of such activities failed to satisfy the clear and convincing evidence standard. This court is well aware that the disputed parcel in this case (1.728 acres) is much smaller than the eleven-acre parcel that was the subject of the dispute in the U.S. Bank National case, however, the legal analysis conducted by Judge Pickard in that case is relevant to this case. This court therefore finds that the plaintiff, assuming arguendo, that neither he nor his parents held record to old Lot 9B, has failed to prove, by clear and convincing evidence, that he holds equitable title via the doctrine of adverse possession.
X. CONCLUSION
As noted at the beginning of this memorandum, the court, in deciding the factual and legal issues, was required to address three questions, relative to the ownership of old Lot 9B.
First, the court finds that the plaintiff, based upon the strength of his title and not the demonstrated weakness of that of RMM, has proven, by a fair preponderance of the credible evidence, that he is the record title owner of the disputed property. Second, the court finds that RMM has failed to prove, by a fair preponderance of the evidence, that it holds record title to the disputed property. Third, the court finds, on the one hand, that RMM has failed to prove, by clear and convincing evidence, that it holds equitable title to the disputed parcel via the doctrine of adverse possession and, on the other hand, under the assumption that RMM does have record title to old Lot 9B, the plaintiff has failed to prove, by clear and convincing evidence, that he has equitable title via that doctrine.
XI. ORDERS
For all of the above reasons, judgment may enter in favor of the plaintiff on the first count (quiet title) of his complaint, while judgment may enter in favor of RMM on the second count (adverse possession) of the plaintiff's complaint. For the same reasons, judgment may enter against RMM on both the first and second counts of its counterclaim. Said judgments will enter without costs to either party.
It is, therefore, hereby adjudged that the record title to that piece or parcel of real property described in Schedule A below and made a part hereof, be and the same is hereby quieted and settled in the name of the plaintiff, David H. Porter, as against the defendant, RMM Consulting, LLC, and that said defendant has no interest or encumbrance upon said premises.
Schedule A
All that certain piece or parcel of land, with all improvements thereon standing and all appurtenances thereto belonging, situated in the Town of Warren, County of Litchfield, and State of Connecticut, more particularly described as Lot 9B as depicted on a survey entitled, "Map of Property of John J. Sheehan, Curtis Road, Warren, Connecticut, Scale 1" = 100,' November 1973," by George P. Burnham, land surveyor, which map is on file in the office of the Town Clerk of Warren in Vol. 4 as Map 218, to which reference may be had for the particulars thereof. Lot 98 contains 1.728 acres and it is more particularly described as follows:
Commencing at a point, which is the northwesterly corner of land now or formerly of Julian P. Voisard on line of land now or formerly of Myron P. Hopkins; running thence N 79° 57' E 103 feet to a monument; thence N 88° 02' E 224.4 feet; thence S 87° 39' 30" E 64.8 feet; thence S 35° 32' 30" E 9.05 feet; thence S 84° 09' E 206.7 feet to a pipe in the wall; thence N 99.11 feet to a stake and stone; running thence westerly to a monument, which is a half inch galvanized screw in a 24-inch leaning oak on land now or formerly of Myron P. Hopkins; thence S 9° 13' E 184 feet to the point or place of beginning.
For a further description, see map entitled, "Property Survey prepared for RMM Consulting, LLC, Sheehan Road, Warren, Connecticut, December 15, 2002, Scale 1" = 40'," Michael J. Riordan, Licensed Land Surveyor, the aforementioned parcel being shown as Lot 9B, consisting of 1.728 acres. See plaintiff's #58.
CONNECTICUT STANDARDS OF TITLE (1999 Edition) EFFECTIVE DATES OF STANDARDS OF TITLE (Revised April 2005)
The effective dates of the Standards of Title contained in this 1999 edition vary, based on the date of their approval by the Board of Governors of the Connecticut Bar Association. Whether a standard of title is relevant to the determination of marketability of title of an interest in real property depends on whether that standard was an approved standard as of the time that marketability of title of that interest is to be determined.
The following table sets forth the date of CBA Board approval of each chapter of the Standards of Title published in this 1999 edition. Those chapters which have not been revised since the 1980 edition are shown as having an effective date of January 1, 1980. As future revisions or additions are made to the Standards, this table will be replaced to reflect such new or revised Standards.
Connecticut Bar Association
June 30, 1999.
Chapter I The Title Examiner — March 17, 1997
Chapter II Use and Operation of the Land Records — March 17, 1997
Chapter III The Marketable Record Title Act — February 16, 1999
Chapter IV The Alteration and Correction of Recorded Documents — January 12, 1998
Chapter V The Notice of Lis Pendens — September 13, 2004
Chapter VI Grantors — March 18, 1991
Chapter VII Grantees — March 18, 1991
Chapter VIII Name Variances — March 17, 1997
Chapter IX Execution, Witnessing and Acknowledgment — March 17, 1997
Chapter X Descriptions — January 12, 1998
CHAPTER X DESCRIPTIONS STANDARD 10.1 WHEN DEFICIENT DESCRIPTIONS IMPAIR MARKETABILITY
Errors, irregularities and deficiencies in property descriptions in the chain of title do not impair marketability unless, after all circumstances of record are taken into account, a substantial uncertainty exists as to the land which was conveyed or intended to be conveyed, or the description falls beneath the minimal requirement of sufficiency and definiteness which is essential to an effective conveyance. Lapse of time, subsequent conveyances, the patent or typographical nature of errors or omissions, accepted rules of construction, and other considerations should be relied upon to approve marginally sufficient or questionable descriptions.
Comment 1. A deed must contain, directly or by reference, a description of the land sought to be conveyed. The absence of such description, or the setting forth of a description which is so vague and uncertain as to render it impossible to identify the property, renders the deed ineffective. A description, though it need not in and by itself identify the property, should at least be the instrument by which identification is possible. See Sachman on The Law of Titles § 3.3. It is reasonable to rely upon corrections or improved descriptions appearing in later conveyances and upon the passage of time, in which difficulty has not arisen from the less than perfect description. All matters of record, such as adjoining descriptions, maps and surveys on file and the land owned by the grantor, can be means of explanation for the problem description. Unfiled and unrecorded maps, however, and surveys are of no value in resolving the problem.
Comment 2. Certain rules of construction can be useful in reconciling ambiguous or indefinite descriptions. "It is well settled as a rule the construction of deeds that where the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances." Koennicke v. Maiorano, 43 Conn.App. 1 (1996) and cases cited therein." When a deed contains multiple descriptions that appear to be inconsistent and irreconcilable, the rule is that the description containing less certainty must yield to that with greater certainty." Mt. Maumee Partnership v. Peet, 40 Conn.App. 752 (1996); Barri v. Schwarz Bros. Co., 93 Conn. 501 (1919). Typographical mistakes and similar apparent errors and omissions are regularly held not to detract from the clear intent of the instrument. A title examiner should so consider them.
Comment 3. Where the description is patently so inaccurate as to make it impossible to identify the land conveyed, the deed will be void and parol evidence is not in that case admissible to aid the description. See Thompson on Real Property § 3026.
Example: A deed purporting to convey part of a larger tract without any identification as to what portion of the larger tract is intended, e.g., "a 40 acre parcel out of my 100 acre tract on Jones Hill Road" is patently ambiguous and cannot be aided by parol evidence.
Comment 4. Extrinsic evidence is generally admissible to explain an uncertainty or latent ambiguity existing in a deed description so as to make the description apply to the parcel intended to be conveyed, and give effect to the deed. See Benedict v. Gaylord, 11 Conn. 332 (1836). Parol evidence is not admissible to contradict or vary a description which is definite and certain.
Example: A deed description such as "my residence" or "my property on Spring Street" may be clarified by parol evidence to establish the fact that the grantor owned at the time only one parcel of land on the designated street, thereby saving the description from being declared void for uncertainty. See Hodges v. Kowing, 58 Conn. 12 (1889).
Comment 5. The Statutory Affidavit (§ 47-12a) can, on occasion, be utilized to resolve description problems. See Standard 12.1 for a discussion of the scope, effect, requirements and limitations concerning the proper use of such affidavits.