Opinion
No. CV-06-4103859
April 29, 2008
MEMORANDUM OF DECISION
In this action, the plaintiffs, Gary Sardo and Mandy Sardo, by the first count of the first amended complaint, seek to quiet title to real property. The second count is a claim of adverse possession to the same property. The defendants, Joseph A. Pellegrini and Colleen D. Pellegrini, by their answer, have denied the essential allegations of the complaint. The defendants have also interposed a special defense of adverse possession. By their amended counterclaim, the defendants seek to quiet title to the property in dispute. In the second count, they claim adverse possession to the same property.
The parties are the owners of real property on the easterly side of Bitgood Road in the Town of Griswold. The plaintiffs own property at 57 Bitgood Road and defendants own property at 49 Bitgood Road. The properties are adjoining and the dispute involves the location of the boundary line between the properties.
I.
The evidence indicates that both properties were included in land acquired by William F. Bitgood by warranty deed dated May 13, 1924, from Harold Geer and Willis C. Terry, trustees of the Pachaug Grange. William F. Bitgood conveyed a portion of the property to Herman J. Bitgood by warranty deed dated January 23, 1929. Herman J. Bitgood was Barbara Geer's father and plaintiff Mandy Sardo's great grandfather. The property conveyed is the major portion of the property now owned by the plaintiffs.
By warranty deed dated March 9, 1950, William F. Bitgood conveyed the remaining portion of the property he acquired in 1924 to his son, Robert Bitgood. The conveyed property includes the Pellegrini property and the disputed area.
Robert E. Bitgood, by warranty deed dated June 30, 1951, conveyed a portion of the property received from his father in 1950 to Herman J. Bitgood, plaintiff's predecessor in title. The land conveyed expanded Herman J. Bitgood's property on the south and the west. The description used in the deed is as follows:
Beginning at a point, at a post set in the ground, on the easterly side of the highway leading from Pachaug to the Middle Bridge, said post being 424 feet southerly from said Middle Bridge and the southwesterly corner of land of Herman J. Bitgood; thence running southerly 16 feet along the easterly line of the above mentioned highway to a stone post set in the ground, bounded on the west by the said highway; thence running easterly 276 feet to a stone bound, bounded on the south by other land of this grantor; thence running northerly 294 feet more or less, to a stone bound set in the bank of the Pachaug River, bounded on the east by other land of the said grantor; thence running in a southwesterly direction along the bank of the Pachaug River 91 feet more or less to a stone bound set in the bank of the said Pachaug River bounded on the north by the said Pachaug River; thence running in a southerly direction 250 feet to another stone bound set in the ground, bounded on the west by land of Herman J. Bitgood; thence running in a westerly direction 185 feet, more or less to a point, a post set in the ground and the point of beginning, bounded on the north by land of Herman J. Bitgood.
The actual location of the boundary described in the deed as running from the stone post set in the ground on the highway "thence running easterly 276 feet to a stone bound" is at the center of the controversy here.
Upon the death of Herman J. Bitgood, title to the two parcels acquired by deeded dated January 23, 1929 and June 30, 1951 passed to his heirs. Title to the same two tracts was eventually acquired by the plaintiffs, Gary I. Sardo and plaintiff Mandy Bernard, now Mandy Sardo. The description of the two parcels and the instruments by which plaintiffs acquired their title used the same description as in the deeds to Herman J. Bitgood.
A survey was made of plaintiffs' property and, by separate deeds, they conveyed title to themselves in 2005. These deeds contain the following courses.
THENCE South 33 ° 48' 29" West, bounded southeasterly by land now or formerly of said Joseph A. Colleen D. Pellegrini, a distance of 294.00 to a rebar;
THENCE North 48 ° 09' 36" West, bounded southwesterly by land now or formerly of said Joseph A. Colleen D. Pellegrini, a distance of 276.00 feet to the point and place of beginning;
By warranty deed dated December 5, 1962, Robert F. Bitgood conveyed to Thomas J. and Virginia M. Andrzecik a portion of the property acquired from William F. Bitgood on March 9, 1950. The description to the first tract in the deed contains the following:
. . . thence running northwesterly, by and along the southwesterly bank of the said Pachaug River, to a bound and the northeasterly corner of land of Herman J. Bitgood; thence running in a southerly direction 294 feet, more or less, to a bound; thence running westerly 276 feet, more or less, to a bound and the easterly line of the said highway, the last two lines bounded westerly and northerly by land of said Herman J. Bitgood; . . .
Virginia M. Phillips (formerly Andrzecik) conveyed the property to Anna M. Lussier and Adam Lussier reconveyed the property to Virginia M. Phillips by deed dated March 12, 1992. The same description as used in the Robert E. Bitgood deed of March 9, 1950 was used in both of these conveyances.
After the death of Virginia M. Phillips, her executor conveyed the property to the defendants using the same description.
The conveyances by which both the plaintiffs and the defendants acquired their properties appear to be compatible with a boundary line which runs from a stone post set in the easterly line of Bitgood Road running easterly 276 feet to another stone bound. This second stone bound is 294 feet from a stone bound set in the bank of the Pachaug River. The deeds in both the plaintiffs' and the defendants' chain of title describe this boundary line and the relation of the second stone bound to the stone bound set in the bank of the Pachaug River.
When a controversy arose over the location of the plaintiff's southerly boundary with the defendant's, the plaintiffs retained the services of Eric Seitz, a licensed surveyor. Mr. Seitz performed a land record search, walked the property with both plaintiff Gary L. Sardo and defendant Joseph A. Pellegrini, located monuments on the land and did field measurements. After completing his research and field work, Seitz prepared a class A2 survey map in December 2005. This map shows the boundaries of plaintiff's land as Mr. Seitz found them to be. Mr. Seitz also prepared a compilation survey in December 2006. The compilation survey, or map, contains the boundary line determined by the defendant surveyor as well as the plaintiff's boundaries as depicted on the December 2005 survey. Both maps were admitted into evidence.
The defendants maintain that this survey map is not in compliance with the minimum standards for surveys and maps as contained in the Regulations of Connecticut State Agencies because it failed to identify all monuments found in the field and to include notational references to any conflict between field observations and deed calls. In particular, the survey map does not depict the cross on a stone described as point B on the map prepared by defendants' surveyor. This monument, however, was shown on a review map prepared by Mr. Seitz.
The defendants, who disagreed with the boundary line as claimed by plaintiffs and as determined by Seitz, contacted John U. Faulise, a licensed surveyor of Boundaries, LLC. After a preliminary review of the situation, Mr. Faulise determined that a conflict existed and that he could not further provide assistance in the matter. Mr. Faulise recommended that defendants retain the services of Donald Aubrey, P.E., L.S of Towne Engineering. At the time the defendants retained the services of Aubrey and his firm, this action had already been commenced. Mr. Aubrey's approach to a determination of the boundary line was similar to that used by Seitz. He first examined the land records and the chain of title utilizing the same deeds as Seitz. Both went back to the 1924 deed to William F. Bitgood. Mr. Aubrey also noted that the descriptions used in the deeds in the chains of title were the same until the recent Sardo deeds.
Aubrey's firm prepared a map and a report. In preparing the map, it was Aubrey's intention to show the boundary line between the litigants' properties and not to show the complete boundary of defendants' property.
Aubrey noted that all of the deeds involved here dating back to 1924 had a common point of beginning at the middle bridge. Although the bridge had been reconstructed by the WPA in 1938, Aubrey opined that as it existed at the time of his survey, it was in the same location as in 1924. He also noted that the actual point on the bridge used in the description was not identified. Aubrey started his first boundary line from a point on the bridge and then proceeded along the Pachaug River to a stone bound set in the bank of the river, which he described in his map as point A. A three-quarter inch iron pipe was found at this stone bound. The iron pipe was described as G on the map. Seitz also located this monument and the iron pipe. This point would also be the "stone bound set in the bank of the Pachaug River" mentioned in the deeds. Aubrey then described the property line as running 192.50 feet to point B described as a "6 by 8" stone bound found with a chiseled cross.
The establishment of point B, the cross chiseled into the stone, as the southwesterly corner of plaintiffs' property is, as stated in defendants' brief, the crux of the dispute between the parties. It is defendants' position that point B is the stone bound mentioned in the deeds.
Aubrey's testimony was that point B, the stone with the cross, was clear and noticeable. Seitz's testimony was to the contrary. Defendant Colleen D. Pellegrini testified that plaintiff Mandy Sardo identified it as a boundary marker and that this was confirmed by Barbara Geer, Mandy's mother, who lived on the property for a number of years. Mrs. Geer, however, denied any recollection of this and Mrs. Sardo denied it occurred. Sardo also testified that she gave permission for the defendants to plant trees within the disputed area and to install a concrete platform.
II.
In the first count of the complaint, plaintiffs have brought an action under the provisions of Connecticut General Statutes § 47-31 to settle title to the land in question. Under subsection (f) of this statute, after hearing the evidence, the court may render judgment "quieting and settling title to the property." In an action under this statute, the plaintiffs must prevail on the strength of their own title and not on the weakness of their adversary. Marquis v. Drost, 155 Conn. 327, 334 (1967). The burden of proof on the first count of the complaint is on the plaintiffs to prove that the boundary is where they claim it to be. Koiennicke v. Maiorano, 43 Conn.App. 1, 9 (1996).
Where, as here, the location of land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinion of experts to resolve the problem and it is the court's duty to accept the testimony or evidence which appears more credible. Feuer v. Henderson, 181 Conn. 454, 458 (1980). One of the principles of law which must guide the court in resolving a dispute over title to real property is that "[w]here the boundaries of land are described by known and fixed monuments which are definite and certain the monuments will prevail over courses and distances." Frank Towers Corporation v. Laviana, 140 Conn. 45, 50 (1953). In this case, there are two fixed monuments which the parties claim marks the southwest corner of plaintiffs' property. The defendants and their surveyor claim that point B, the cross chiseled into the stone, marks this point. Plaintiffs and their surveyor claim that a stone bound as shown on the map prepared by Mr. Seitz marks this point.
The better and more credible evidence here supports plaintiffs' position and it must be found that plaintiffs have sustained the burden of proof establishing title to the disputed area.
The testimony introduced by the defendants intended to prove that plaintiffs and Barbara Geer admitted that point B, the cross chiseled in the stone, marked the southwest corner of plaintiffs' property was in dispute and is not credible.
Other factors tend to confirm that the southwesterly corner of plaintiffs' property was the stone bound located by Mr. Seitz.
The deeds all state that this point is marked by a stone bound. If the point were marked by a stone bound with a cross chiseled into it, it would be logical for the deeds to mention the cross. None of the deeds did so.
Richard DesChamp, a land surveyor with 23 years experience, who did surveying work for defendants on the property, was called as a witness by the plaintiffs. Mr. DesChamp testified that he found the monuments (as located by Seitz) without difficulty. He was shown the stone with the cross but he did not think that it was significant.
The line claimed by plaintiffs from the stone post in the highway line to point B is at an unusual angle to the highway, passes within two feet of a well and would include a portion of the land previously conveyed to Herman Bitgood. The same line as determined by plaintiffs' surveyor would make a more logical 90 degree angle with the highway, would be some distance from the well and would not include any portion of the previously conveyed property.
The distance from the stone bound in the easterly line of the highway to point B, which Aubrey claims is the southwesterly corner of plaintiffs' property is, as determined by Aubrey, 272.46 feet. Seitz has determined that the distance from the stone bound in the highway to the stone bound which he determined to be the southwesterly corner of plaintiffs' property is 276 feet. This distance is compatible with the description found in the deeds. Although the difference between the distances found by the two surveyors is not substantial, that determined by Seitz is compatible with the deeds in evidence and is a factor which must be considered.
The most significant factor which supports plaintiffs' position is the distance between the stone bound marking the southwest corner of plaintiffs' land and the stone bound set in the bank of the Pachaug River. Known and fixed monuments which are definite and certain will prevail over courses and distances. Frank Towers Corporation v. Laviana, supra, 140 Conn. 50. The issue here is which of the stone monuments marks the southwest corner. Under the circumstances of this case, the distance from the bound set in the river and the stone bound marking the southwesterly corner of plaintiffs' property is a factor which must be considered in the location of the southwesterly corner.
Seitz found the distance between the stone bound set in the bank of the river to the stone bound marking the southwesterly corner of plaintiffs' land to be 294 feet. This is consistent with the distance for this course found in all of the descriptions in the chain of title to both plaintiffs' and defendants' properties. The distance between the stone bound set in the bank of the river to point B, which Aubrey claims is the southwesterly corner of plaintiffs' property, is 192.50 feet. This calculation results in a difference of over 100 feet from the deeds in evidence.
Aubrey claims that 192.50 feet is the correct distance. He argues that the 294 feet found in all of the deeds is a result of a scrivener's error or an error by the town clerk in copying the June 30, 1951 deed to Herman J. Bitgood into the land records. This explanation is not credible. While it is possible that an error could have been made in typing the deed into the land records, it is highly unlikely that subsequent deeds would be based upon a copy of the recorded deed. It is much more likely that subsequent deeds would be based upon the original deeds in possession of one of the parties, and if an error had been made in copying the description into the records, it would have been discovered and corrected. Also, considering the number of conveyances involved, it is likely that if a scrivener's error existed, it would have been discovered.
Another factor which supports Seitz's location of the southwesterly corner of plaintiffs' land is that the distance in all of the deeds in plaintiffs' chain of title start at a stone post in the highway and run 276 feet to a stone bound then 294 feet to the stone bound set in the bank of the Pachaug River. The descriptions found in the deeds in defendants' chain of title start from a different point, the bridge, the line then runs along the river bank to a bound then 294 feet, more or less, to another bound and then 276 feet to the bound set in the highway line. The fact that the deed descriptions in both chains of title start from different directions and yet contain the disputed distances further tends to confirm the location of the boundary line as determined by Seitz.
Although, as pointed out by defendants, Seitz's survey might not be in accordance with the state regulations, it must be found that the location of the boundary in dispute, as found by Seitz, is supported by the better evidence. Considering all of the evidence, it must be found that plaintiffs have sustained the burden of proof on the first count of the complaint and that the boundary in dispute is where plaintiffs claim it to be. This determination is dispositive of the allegations of defendants' amended counterclaim in which they seek to quiet title to the property. The allegations of the defendants' counterclaim have not been proven. No finding with respect to plaintiffs' claim of adverse possession is necessary.
III.
Defendants have interposed a special defense of adverse possession. "It is well established that one claiming title to real property by adverse possession must prove by clear and positive evidence each element of actual, open, notorious, hostile, continuous and exclusive possession for the full fifteen-year statutory period. See Rudder v. Mamanasco Lake Park Assn., Inc.; see also General Statutes § 52-575 (fifteen year statute of limitation for claim of adverse possession)." Mulle v. McCauley, 102 Conn.App. 803, 809 (2007).
The evidence indicates that defendants acquired title to the premises in question on October 13, 1995, and went into possession on that date or shortly thereafter. All activities conducted by them on the property occurred after the October 13, 1995 date. There was no evidence of relevant activity on the property by their predecessors in title.
There was no evidence that defendants have been in possession of the property for the fifteen year period required by law. It must then be found that defendants have failed to prove the allegations of the special defense of adverse possession.
IV.
In this action, the court has found for the plaintiffs on the first count of the complaint and against the defendants on the special defense and the counterclaim. The court is required by Connecticut General Statutes § 47-31(f), after hearing the evidence, to render judgment determining the questions and disputes and quieting and settling the title to the property. Lake Carda Improvement Assn. v. Battistoni, 155 Conn. 287, 295 (1967).
Accordingly, judgment is rendered confirming title in the plaintiffs to the property described in Schedule A attached to the complaint and as described in the map entitled "Property Survey Prepared for Gary L. Sardo Mandy Bernard, 57 Bitgood Road, Griswold, Connecticut Scale: 1" = 30' December 2005" prepared by Eric Seitz, licensed surveyor.
Plaintiffs have requested equitable relief as stated in the complaint. There was insufficient evidence for the court to enter orders concerning such matters at this time.