Opinion
Nos. CV 08 5006849, CV 09 4009400
May 12, 2011
MEMORANDUM OF DECISION
BACKGROUND
These two cases, which have been consolidated, involve the boundaries of four lots on the east side of Elizabeth Avenue in the Saunders Point area of the town of East Lyme, Connecticut. The lots have four separate owners. The cases have a long history in this court of claims and counterclaims relating to the boundaries and utilization of the lots or some of them. However, due to the cooperation of counsel and the parties, the matter has been simplified by the entry of a Stipulation at the trial relating to the issues to be resolved by the court. Subsequent to the trial, again by agreement, parties have been substituted so as to have the correct owners of the lots included as parties and subject to the resolution of the court.
FACTS
Most of the pertinent facts in this case are a matter of agreement, either by pleading or stipulation. From the evidence, the stipulation and the pleadings, and taking into account reasonable and logical inferences from the same, and considering the court's determination as to the credibility of the witnesses, the following facts are found. The parties are all of the owners of lots 11, 12, 13 and 14 depicted on a 1919 map entitled "Plan of Beach Point on West Bank of Niantic River, East Lyme, Conn" (hereafter 1919 Map) in evidence as Plaintiff's Exhibit 6. The lots were originally conveyed out by a common owner, Grace Bernard Smith, at or about the same time in 1919. A complete chain of title for each lot has been put into evidence.
Lot #11, known as 2 Elizabeth Street, is owned by John P. Petrillo, Jr. And Gail Petrillo, Trustees of the Petrillo Real Estate Trust (hereafter Petrillo).
Lot #12, known as 4 Elizabeth Street, is owned by Patricia Acton and Marilyn Moss (hereafter Acton).
Lot #13, known as 6 Elizabeth Street, is owned by Joanne Rocamora (hereafter Rocamora).
Lot #14, known as 8 Elizabeth Street, is owned by Peter H. Heaney, Patricia Heaney Farr and Michael K. Heaney (hereafter Heaney).
Petrillo acquired additional land to the north and west which was added to lot 11 subsequent to the original conveyances and was not part of the Grace Bernard Smith plot plan of 1919.
Each chain of title contains a reference to the 1919 Map and each chain contains a reference to "conditions" from the original deed out which reads as follows:
"The conditions upon which this deed is granted are as follows:
The lines on the map above referred to are agreed upon and accepted by the grantees herein."
1st No building or enclosure can be erected on the land for keeping or harboring of domestic animals or fowls.
2nd All toilets, if outside its main building must be screened by lattice work and kept in a sanitary condition.
3rd No building or projection thereof can extend beyond the building lines as drawn on each map or plan."
The 1919 map also contains a notation that "Solid lines are lot road lines, Broken lines building sidewalk lines . . ." The 1919 Map does not contain angles on corners nor does it contain compass courses for any lines. Moreover, the evidence indicates that the map can not be scaled.
In addition, the 1919 plan contains a depiction of what has been referred to by the parties as a "common area" between the end of the easterly boundary of said lots and the Niantic River. Certain rights to this "common area" were conveyed to each party in common with Grace Barnard Smith and other grantees of lots by the following language:
Together with a right in common with the grantor and the grantees of lots conveyed by this grantor in and to a certain tract of land situated in said Town of East Lyme and bounded and described as follows to wit: beginning at the northeast corner of the above described tract of the west bank of the Niantic River; hence running southerly bounded westerly by the above described tract sixty (60) feet to the southeast corner of said lot no. _______; hence running easterly to the Niantic River; hence running northerly bounded easterly by said River sixty (60) feet; thence westerly bounded northerly by other land owned by this grantor to the place or point of beginning.
Together with the rights in common with all the owners of all the adjoining lands to use and enjoy the beach front between the points designated as high and low water marks, and pass and repass therein and thereon, and all shall have the privilege to make use of such beach and bathing and other recreations and sports, the title to the fee of such land to remain always in the grantor, and she agrees never to convey said beach front as described herein for commercial purposes of any kind or description.
Each chain of title also contains in the deeds a "metes and bounds" description of the lot in question with specific distances and in some cases references to monuments.
The Stipulation read into the record on March 8, 2011, read in pertinent part as follows:
"The stipulation is as follows: All the parties in this matter hereby submit the following stipulation as an agreement of the parties as to the issues for trial and respectfully request that the court accept this stipulation . . . the plaintiff asserts that there are boundary discrepancies between the 1919 . . . map, the metes and bounds description referenced in each of the parties' chains of title, and the monuments on or near the parcels.
Paragraph six reads, the parties seek quiet title between the boundary between each of their lots specifically seeking a determination of the exact location of each boundary line between the parcels on Elizabeth Street down to and including the seawall on tie riverside of their respective parcels. These we have referred to variously as the main parcels.
The parties in each of them additionally desire — paragraph seven of the stip. — quiet title to additional parcels described in each of their deeds, which parcels lie between each of main parcels at a point described in their deeds on the Niantic River. These parcels are owned by each party with a right in common with Grace Barnard Smith . . . the parties hereby agree that they have obtained by way of deed, fee simple title, or adverse possession as against all other parties in this lawsuit title to the common area identified in each of their deeds and highlighted in an exhibit to be attached to the stipulation.
Paragraph nine reads, the parties agree that the boundary line between each of the parties/common area parcels is to be a continuation of the same line and at the same angle as a boundary line between the main parcels from Elizabeth Street running down to the seawall on the riverside of the property as determined by this court . . ."
The primary dispute stems from some of the parties' belief that they own a portion of the area near the boundary line of their neighbor's adjoining lot. Specifically at issue are triangles of land between portions of the lots along the north/south boundary lines nearest the eastern boundary along the Niantic River side of the properties, especially between lots 13 and 14. There is little or no dispute between the parties as to the boundary lines of the lots on the west end nearest Elizabeth Street which have mostly been marked by mere stones. The disagreement is, in part, brought about because of the quality of the 1919 Map and its lack of detail as well as the disparity between that map and the metes and bounds descriptions given in the deeds themselves.
This conflict led each party to commission their own surveys. In some cases more than one. The plaintiff (lot #13) Rocamora originally hired Lloyd Pearson whose survey on 11/29/07 is in evidence as Plaintiff's Exhibit 8. (Hereafter Pearson map.) He made a reference to a possible dispute with respect to some of the property lines.
Acton (lot #12) hired Robert Pfanner who prepared a survey of the lots in question on April 30, 2009. (Plaintiff's Exhibit 7) (hereafter Pfanner plan).
Richard Meehan was hired by Rocamora's title insurance company to review the available surveys and form an opinion expressed in another boundary survey dated January 21, 2010 (Plaintiff's Exhibit 5). (Hereafter Meehan plan.)
Petrillo (lot #11) had a survey of only their lot done June 11, 2007 by the LCR group which was in evidence as Defendant's Exhibit N. (Hereafter LCR plan.)
In addition there is in evidence a survey map titled "Plan of Lots at Saunders Point, East Lyme, Conn., Oct. 1920" prepared by Daboll Crandall, C.Engrs (hereafter 1920 plan) which relates to lots 11, 12, 13, and 14. It does not appear that this Plan was recorded on the land records or referred to in any of the four chains of title.
There is also in evidence a copy of a plan entitled "Revised Plan of Building Lots by The Estate of George S. Smith, East Lyme, Conn. Original Survey and Layout by Chandler Palmer; June 1922. Revised Layout By Daboll Crandall, April 1925." (Hereafter 1925 plan) This 1925 plan does not show the four lots in question here but does show Elizabeth Street and the general area where the four lots were located.
At the trial all parties were well represented by competent counsel. Richard Meehan testified for the plaintiff Rocamora (lot #13). Robert Pfanner testified for Heaney (Lot #14) and Acton (Lot #12). Both of these surveyors, although arriving at different results, appeared to the court to be well qualified in their fields and familiar with the relevant facts relating to the deeds and lots in question. Petrillo (Lot #11) submitted the survey of the LCR group which depicted only their lot. In addition Beth Acton testified about the finding of the 1920 plan in a safety deposit box. Michael Heaney testified as to the use by their family of the land at the northeasterly corner of lot 14. Several photographs were introduced to illustrate that use and the location of a fence in the area. Additional facts found may be recited in the conclusions reached.
The parties extensively questioned the two surveyors during the trial and briefed their respective claims with respect to the methods and opinions of each. There was testimony questioning the credibility of Pfanner because of his preparation of a plan for Acton (Plaintiff's Exhibit 9) relating to a zoning consideration which had questionable dimensions. The defendants seem to question the plaintiff's use of the Pearson map as a representation of her lot boundaries for some Department of Environmental Protection matter even during the pendency of this litigation where she is relying instead on the Meehan map. That Pearson map shows the boundaries of lot 13 more in line with the Pfanner map than the plaintiff's present claim based upon the Meehan plan.
While the testimony as to the methods used and the conclusions reached by the witnesses was extensive and was briefed thoroughly by the parties it need not be repeated here for purposes of this opinion. Suffice it to say that the court has carefully considered the testimony, the maps, the photographs, the deeds, the arguments in the briefs and the stipulation of the parties.
THE LAW
General Statutes § 47-31(a) provides in relevant part:
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 fee, for years, or 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.
General Statutes § 47-31(f) provides:
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.
The standard of proof in a quiet title action is clear and convincing evidence. Riche v. Fairfield, 186 Conn. 490, 498 (1982); Ruggerio v. Town of East Hartford, 2 Conn.App. 89, 96 (1984). See also Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42 (1989) ("clear and convincing" standard equates to "clear and positive"); accord, Clark v. Drska, 1 Conn.App. 481, 485-87 (1989).
"An action to quiet title is one quasi in rem, and it lies against those who, at the time it is instituted, are the present claimants to the land under the instrument which creates the cloud." Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 294 (1967). To prevail, the plaintiff must do so on the strength of her own title, not the weakness of the defendants'. Velsmid v. Nelson. 175 Conn. 221, 229, (1978); Loewenberg v. Wallace, 147 Conn. 689, 698 (1960).
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." Velsmid v. Nelson, 175 Conn. 221, 227 (1978); Frank Towers Corp. v. Laviana, 140 Conn. 45, 50 (1953).
Only when the testimony of witnesses as to the location of the land described in deeds is in conflict does it become a question of fact for the determination of the court which may rely upon the opinions of experts to resolve the problem. In such cases, it is the court's duty to accept that testimony or evidence which appears more credible. Feuer v. Henderson, 181 Conn. 454, 458 (1980). "In determining credibility of the experts, the court as the trier of fact could believe all, some or none of the testimony." (Internal quotation marks omitted.) U.S. Bank National Assn. v. Palmer, 88 Conn.App. 330, 338-39 (2005). "In the case of conflicting descriptions, courses and distances are controlled by and must yield to monuments whether natural or artificial . . . It is only in the absence of all monuments and marks upon the ground and in the total failure of evidence to supply them that recourse can be had to calls for courses and distances as authoritative." Chebro v. Audette, CV 09-5004630, 2010 WL 4276746 (Sept. 23, 2010) [ 50 Conn. L. Rptr. 690], 12 Am.Jur.2d 439, Boundaries § 57 (2009).
"When a deed sets forth two different descriptions of the property to be conveyed, the one containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot be reconciled." Simone v. Miller, 91 Conn.App. 98, 109 (2005).
Conclusion
The court has given consideration to the evidence and the opinions of the experts who testified at the trial. Having heard the experts and considered the applicable law, the key to the decision in this case is the testimony of Mr. Pfanner which was credited by the court. He has been a licensed surveyor since 1974 and a civil engineer since 1976. He grew up in Saunders Point and has surveyed almost every property on the point over the years. Mr. Pfanner reviewed the relevant material, prepared a property survey of the land, located most of the original monuments and testified that there was a minimal discrepancy in the called for distances called for in the deeds based on the recovered monuments. Mr. Pfanner relied on the measurements called for by the deeds and monuments and did not rely on the lines on the 1919 map. The Pfanner map substantially agrees with the Pearson map and the 1920 map by Daboll and Crandall. Also the Pfanner map establishes the boundary between Acton (lot 12) and Petrillo (Lot 11) in the same general area as the LRC map prepared for Petrillo.
Whereas, in contrast, the Meehan Map relied heavily on what Mr. Meehan perceived to be the correct location of the lines on the 1919 map and thus was required to disregard the specific measurements given in the deed descriptions. He did that, least in part, because of his evaluation of the significance of the clause in each deed indicating that the grantees "agreed upon and accepted" the lines in that map. As an example, if the Meehan Map were to be credited the easterly boundary of Lot 14 along the Niantic River would be 42.07 feet long instead of the 60 feet called for in the specific wording in the metes and bounds description in the deed. Mr. Meehan located no iron pin, merestone or other monument to justify this deviation. The court did not credit the Meehan methodology.
Accordingly, it is the judgment of the court that the titles to the four lots in question, as identified above, and the respective boundaries of the same are determined to be as established and depicted on that certain map or plan entitled: Property Survey, Property of Marilyn Moss Patricia Acton, Location 4 Elizabeth Street, Niantic, Connecticut, J. Robert Pfanner Associates, P.C., Civil Engineers Land Surveyors, dated April 30, 2009, Amended 10/13/10. There is excepted from this decision any determination as to the extra land acquired by the Petrillos to the North and West of Lot 11 which was not part of the original conveyance out by Grace Bernard Smith.
In addition, consistent with the Stipulation of the parties, it is the judgment of the court that as to the land to the east of the four said lots between the easterly boundary and the waters of the Niantic River (referred to as the Common Area) each of the lot owners shall have the exclusive right, title and interest in such area as abuts their said lot as shown on the Pfanner Map (identified above) between the east-west boundary lines extended on the same course, generally easterly to the waters of Niantic River as shown on said map to the exclusion of any of the other parties to this action. No determination is made as to the rights to those areas, if any, of any person not a party to this action.
Because of the court's use of the Pfanner map to determine the lot boundaries, it is not necessary to consider the adverse possession claim of the defendants Heaney.
Judgment may enter accordingly, with no costs to any party.