Opinion
No. FST CV 09 5011817 S
January 24, 2011
MEMORANDUM OF DECISION
This case comes to this court as a court trial where the plaintiff claims title to a portion of the defendant's property by adverse possession. The defendant denied that claim, sought affirmative relief by way of counterclaim for tortious interference with contractual relations, trespass and quiet title. The plaintiff denied those claims.
The case was tried to the court by way of witnesses and exhibits. In addition, the court viewed the premises with the lawyers present after the evidence was completed by agreement of the parties.
The parties do not significantly dispute the law. The dispute is over the facts and their application to the law.
Adverse Possession
In order to establish a claim to disputed property by adverse possession, a claimant must establish, by clear and positive proof, "each element of actual, open, notorious, hostile, continuous and exclusive possession for the full fifteen year statutory period." Mulle v. McCauley, 102 Conn.App. 803 (2007), see Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 763, cert. denied, 284 Conn. 904 (2007); C.G.S. § 52-575. The burden of proof is on the party claiming adverse possession. Schlichting v. Cotter, 109 Conn.App. 361, 366 (2008) (citations omitted). Clear and positive proof, also referred to as clear and convincing proof, is a higher standard of proof than that used in civil actions, but is lower than the standard used criminal matters. Eberhart v. Meadow Haven, 111 Conn.App. 636, 640 (2006); Lisiewski v. Seidel, 95 Conn.App. 696, 701 (2006). Put another way, a plaintiff claiming title by adverse possession must prove that the facts are "highly probably true."
Furthermore, "[a] finding of [a]dverse possession is not to be made out by inference, but 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." (Citation omitted; internal quotation marks omitted). Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 767, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007).
Adverse possession claims are "highly fact and context specific." Rudder v. Mamanasco Lake Park Assoc., 93 Conn.App. 759, (2006). "The location and condition of the land at issue must be taken into consideration and the alleged acts of ownership must be understood as directed towards those conditions." Id. (citing Roche v. Fairfield, 186 Conn. 490, 501 n. 11 (1982). The requirements for adverse possession "vary according to, and it is necessary to consider, the nature and situation of the property. To determine whether the particular acts constitute adverse possession, it is sometimes necessary to consider the character of the property and the purposes for which it is suitable, the circumstances attending the possession, the acts and declarations of the claimant while in possession, and the relation of the holder of the legal title to the claimant." Id. (citing 2 C.J.S. 459, Adverse Possession § 33 (2003)).
Furthermore, adverse possession claims must be made under a "claim of right." This means that the claimant has entered the property with the intent to hold it, uninterrupted, for the fifteen-year statutory period. Eberhart, 111 Conn.App. At 643. Essentially, this determination hinges on whether the claimant has used the property as his own. "A claim of right does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it had the intent to disregard the true owner's right to possession." Schlichting v. Cotter, 109 Conn.App. 361, 366 n. 4 (2008) (quoting Eberhardt v. Imperial Construction Services, 101 Conn.App. 762, 768 (2007)). The claimant cannot recognize the owner's ownership of the land through words or conduct. Id. (quoting Top of the Town, LLC v. Somers Sportmen's Assn., Inc., 69 Conn.App. 839, 843 (2002)).
Open, Visible and Notorious
These requirements give the true owner actual notice that a claim is being made to his property or, at least they create the foundation for establishing constructive notice of the same. Schlichting v. Cotter, 109 Conn.App. 361, 368 (2008) (quoting Robinson v. Myers, 156 Conn. 510 (1968)). The fact that the possession is open, visible and notorious tells the true owner that a trespass is occurring and informs him that his property rights are in jeopardy. Id. The possession and use must "be sufficiently apparent to put the true owner on notice that the [claimant] is making an adverse possession claim." Id. (quoting 2 C.J.S. 482, Adverse Possession § 53 (2003)).
The legal significance of the open and visible element of adverse possession requires a fact finder to examine the extent and visibility of the claimant's use of the record owner's property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own. Hence, a claimant will fail to satisfy these requirements unless the possession and use were sufficiently apparent to put the true owner on notice that the claimant was making an adverse claim of ownership. Schlichting v. Cotter, supra, 109 Conn.App. 368, 369.
Hostility
In order to demonstrate the element of hostility, a claimant must establish that his possession of the disputed land was "without permission, license or consent of the owner and must continue to be so throughout the required fifteen year period." Mulle v. McCauley, 102 Conn.App. 803, 813-14 (2007). Hostility does not "imply animosity, ill will or bad faith." Id. The possession is "opposed and antagonistic to all other claims, and that conveys the clear message that the owner intends to possess the land as his or her own." Id. at 814.
Exclusivity
When determining whether a claimant's possession is "exclusive" courts consider whether the alleged actions "would ordinarily be exercised by an owner in appropriating land to his use and the exclusion of others." Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 641 (2008) (quoting Roche v. Fairfield, 186 Conn. 490, 502-03 (1982)). Possession does not need to be "absolutely exclusive; it need only be a type of possession which would characterize an owner's use . . . It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question." Id. at 641-42.
Continuous
The hostile acts must also be done continuously. See Lisiewski v. Seidel, 95 Conn.App. 696 (2006). Where the hostile acts are infrequent and done at irregular intervals, adverse possession will not be found. Id. At 706 (citing Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690 (1952).
"Despite that exacting standard, our scope of review is limited. Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion." (Citation omitted; internal quotation marks omitted) Provenzano v. Provenzano, 88 Conn.App. 217, 221-22, 870 A.2d 1085 (2005); see also General Statutes § 52-575; Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462-63, 338 A.2d 470 (1973); 16 R. Powell, Real Property (2005) § 91.13.
Tortious Interference With Contract
The court finds the following facts.
1. At the time of trial the dispute in this case pertained to two parcels of real property that have been referred to variously from time to time through the trial as the "disputed property" or the "adverse possession property" and which are more specifically referred to and described in the Second Amended Complaint as the First Parcel and the Second Parcel.
2. The First Parcel and the Second Parcel comprise parts of the easterly end of 85 Dingletown Road, Greenwich, Connecticut, record title to which stood, at all relevant times, in the name of the Defendant, Donna Purkey, or in her predecessors in title, Harold Purkey, and William and Ruth Bromwich.
3. The Defendant, Donna Purkey, record title owner of 85 Dingletown Road, Greenwich, CT, originally took sole title to 85 Dingletown Road by way of quitclaim deed from Harold Purkey, dated April 4, 1995, and recorded in the Greenwich land records in volume 2644 at page 117. (Exh D18.)
4. The Plaintiffs, Dean Secord and Marilyn Secord, record title owners of 87 Dingletown Road, Greenwich CT, originally took joint title to 87 Dingletown Road by way of a warranty deed from Dominic and Leona Tarantino dated June 29, 1983, and recorded in the Greenwich land records in volume 1320 at page 337. (Exh P1.)
5. The Plaintiffs have continuously occupied 87 Dingletown Road, Greenwich, CT, as their primary and legal residence since June 29, 1983 to the present day.
6. The First Parcel is a small triangular area containing 1072 square feet, more or less, located in the Defendant's property of record, bounded on the east by the Plaintiffs' deeded land and on the south by the border of Dingletown Road. The westerly boundary is physically defined by a line of rocks and trees on the Defendant's property of record, connecting the other two boundaries to form a rough triangle, as described in the Second Revised Complaint. (Parcel Y, Ex. D-16.) The court finds D-16 done by a surveyor more accurately reflects the disputed properties between the parties.
7. The Second Parcel is a smaller triangular area containing 72 square feet, located at the northeast corner of the Defendant's property of record, bounded by the two property lines of Defendant's property of record where they join at the northeast corner. The southwesterly border is physically defined by a row of rocks adjacent to a stone and mortar retaining wall. It is described in the Second Revised Complaint. (Parcel X, Ex D-16.) The court finds D-16 done by a surveyor more accurately reflects the disputed properties between the parties.
8. Plaintiffs began to utilize the disputed property in an adverse possession manner after taking title to 87 Dingletown Road on June 29, 1983.
9. At the time Plaintiffs took title to 87 Dingletown Road, the area depicted as the First Parcel had already been developed into a grass lawn with established planting, and the Plaintiffs believed that it was part of their property.
10. Plaintiffs continued to utilize the First Parcel of the disputed areas without permission from the deeded owners of 85 Dingletown Road, and mowed the pre-existing lawn, raked, fertilized, mulched and trimmed the pre-existing evergreen area. The court finds the activities of the plaintiff as to this parcel insufficient to establish adverse possession.
11. The work done and the use thereof by the plaintiff on the disputed area Parcel Y by the plaintiff's landscapers, tree services, and other professionals are insufficient under the law and facts to establish adverse possession.
12. In addition, from the date of their ownership of 87 Dingletown Road in June 1983, the Plaintiffs commenced to openly utilize, develop, maintain, clear, and exclusively occupy the Second Parcel together with areas in between, within, and adjacent to wetlands and a rocky hill area adjacent to the west of their driveway access as if it was their own from 1983 to the present day.
13. The Second Parcel, Parcel X, Ex. D-16 constitutes a portion of the southwestern shoulder lawn area that is immediately adjacent to Plaintiffs' driveway.
14. The retaining wall there is both decorative and functional in that it aesthetically enhances the entrance to the house area of the property as well as is supportive of the lawn area that is adjacent to Plaintiffs' driveway.
15. Neither the Defendant nor her predecessors have ever attempted to landscape, maintain, cut grass or utilize in any way the adverse possession areas or any part of the eastern end of the deeded property known as 85 Dingletown Road.
16. The Plaintiffs have never seen the Defendant travel over or upon the disputed areas.
17. The Defendant was demonstrably familiar with her property line, including her entire deeded northern property line that ends at the northeast corner of her deeded property and is the northern border of the Second Parcel. Plaintiffs had this boundary their southern deeded boundary, surveyed and staked in 1997 after Ms. Purkey, planted bamboo on Plaintiffs' property. Plaintiffs had this same border surveyed and re-staked in 2006, after they discovered the 1997 stakes had been removed without their knowledge or consent.
18. Plaintiffs have occupied Parcel X (Second Parcel), continuously and openly since 1983 without permission of either the Defendant or her predecessors in title.
19. The Defendant never gave the Plaintiffs express or implied permission to use the disputed area, the wetlands, the waterway or the area on her property adjacent to a catch basin, all of which were exclusively, openly, and continuously utilized, occupied, and maintained by the Plaintiffs and/or their invited guests and hired professionals and have been to this day.
20. The Defendant was aware that the Plaintiffs were "under construction" in the area encompassing the Second Parcel, Parcel X of the adverse possession claim.
21. The Plaintiffs never had any communications whatsoever with the Defendant regarding Parcel X.
22. Prior to the commencement of the pending lawsuit, the Defendant never objected to the Plaintiffs' open, exclusive, and continuous use and occupancy of Parcel X.
23. The Plaintiffs have utilized Parcel X exclusively, continuously, and openly from 1983, without express or implied permission of defendant or her predecessors in title, for a period of approximately twenty-seven years as of the date of suit.
24. The Plaintiffs have not been absent from 87 Dingletown Road for any extended period of time since acquiring it in 1983, and the property has always been their primary residence and the home where they raised their children.
25. The area of the Second Parcel is open and visible to anyone traveling the Plaintiffs' driveway, to anyone standing in the back or eastern side yard of Defendant's property, to anyone traveling the driveway of 89 Dingletown Road, an adjoining property to Plaintiffs' east, and until recently to anyone traveling along Dunwoodie Place.
Tortious Interference With Contract
The Connecticut Supreme Court has long recognized a cause of action for tortious interference with contract rights. Rossmana v. Morasco, 115 Conn.App. 234, 244 (2009). "One who intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract." City of New Haven v. Town of East Haven, 47 Conn.Sup. 594, 612 [ 31 Conn. L. Rptr. 184] (2001) (citations omitted).
The essential elements of tortious interference with contract rights include: (1) the existence of a contractual (or beneficial) relationship; (2) that the defendant knew of that relationship; (3) that the defendant intended to interfere with that relationship; (4) that the interference was tortious; and (5) that a loss was suffered which was specifically caused by the defendant's tortious conduct. Id. and Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535-36 (1988).
Not every act that disturbs a contract or business expectancy is actionable. Blake v. Levy, 191 Conn. 257, 260 (1983). The action taken must be Tortious. See Golembeski v. Metichewan Grange No. 190, 20 Conn.App. 699, 702 (1990). A plaintiff must plead and prove at least some improper motive or improper means. Id. (citations omitted). "A claim is made out only when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." Blake v. Levy, Id. at 261. In order to prove the fourth element, i.e., that the defendant's conduct was tortious, a plaintiff must show "that the defendant was guilty of fraud, misrepresentation, intimidation of molestation or that the defendant acted maliciously." Id. (citations omitted). Malice, in this context, is "meant not in the sense of ill will, but intentional interference without justification" and the plaintiff must allege and prove a "lack of justification on the part of the defendant." American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 90-91 (2007).
The Restatement of Torts identifies the following factors to determine if an actor has improperly interfered with a contract or prospective contract.
(a) The nature of the actor's conduct;
(b) The actor's motive;
(c) The interests of the other with which the actor's conduct interference;
(d) The interests sought to be advanced;
(e) The social interests in protecting the freedom of action in the actor and the contracted interests of the other;
(f) The proximity of remoteness of the actor's conduct to the interference; and
(g) The relations between the parties.
Finally, unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers an actual loss. Therefore, in addition to the proof of tortiously improper behavior, for the cause of action to lie, the plaintiff must allege and prove an `actual loss' resulting from the improper interference with the contract; the tort is not complete unless there has been actual damages suffered. Appleton v. Board of Education of Town of Stonington, 254 Conn. (2000).
The defendant has failed to prove that the interference was tortious which is the fourth element. It is clear to this court, that any interference by the plaintiff with the contractual rights of the defendant and the buyer were incidental to the dispute over the adverse possession claim. Importantly, in the original complaint the plaintiff sought more property then finally claimed at the conclusion of the case, which were substantially Parcels X and Y on defendant's Exhibit 16. The court finds it was not unreasonable for the plaintiff to have rejected the offer to accept Parcels X and Y on defendant's Exhibit 16 without further protections concerning those parcels. If they were to win the case, at that point, they would have obtained more property than offered. It is clear to this court that there were numerous discussions between attorney Seager, and the defendant's real estate attorney attempting to confirm a settlement. It is clear that thereafter there were discussions concerning a resolution of the claim between the plaintiffs and the defendant all conducted in good faith. It is also clear to this court that although there were potential remedies that could have been used to save the contract between the defendant and the seller, that the defendant chose to terminate the agreement and return the deposit therein. The nature of the interference by the plaintiff with the defendant's contractual rights were clearly to this court not tortious.
Trespass
The injunctive relief sought by the defendant is denied because the court has found in favor of the plaintiff as to the parcel designated as Parcel X on Exhibit D-16.
Findings
1. I conclude that the record contains ample evidence to support this court's finding that the plaintiffs has proven each and every element of adverse possession for well over fifteen years by clear and convincing evidence, and that the plaintiffs are therefore the owners of Parcel X on Exhibit D-16.
2. I find the plaintiffs have failed to sustain their burden of proof as to Parcel Y on Exh. D-16.
3. The defendant has failed to prove their counterclaims.
SO ORDERED.