Opinion
No. CV-04-0104450S
August 16, 2005
MEMORANDUM OF DECISION
I. BACKGROUND
In his One-Count Complaint, the plaintiff has alleged that on various occasions and in various ways, the defendant has trespassed upon his property, which property is shown on a Class A-2 survey that is on file in the Town of Haddam Clerk's Office. (Plaintiff's Exhibit #4.) He seeks damages and a number of orders.
In his Answer, the defendant denies any Trespass, and in a Two-Count Counterclaim alleges that he, not the plaintiff, is the record title owner of the northerly 40 feet of the premises shown on the above-mentioned survey. The defendant also alleges, in the alternative, that he has acquired title to the 40 feet in question by adverse possession. The defendant seeks a judgment determining the rights of the parties to the disputed 40 feet.
II. FACTS
Haying reviewed the testimony elicited during the trial, including the exhibits, and having evaluated the credibility of the various witnesses, the court finds the following facts.
The plaintiff's property, which is vacant land, is abutted on the north by the defendant's land, which includes the defendant's house. Therefore, the plaintiff's north boundary is the defendant's south boundary; the dispute is over the location of that boundary line.
A. FACTS RELATIVE TO RECORD TITLE
Prior to 1897, Russell Manufacturing Company ("Russell"), owned the lands now owned by the plaintiff and the defendant. By quitclaim deed dated December 11, 1897, Russell conveyed what is now the Smith property CT Page 11968-aq to the Trustees of the Eureka Council Number 43 of the Order of United American Mechanics. Said deed was recorded in Volume 44, Page 464 of the Land Records (Plaintiff's Ex. 6). This deed described the property being conveyed as follows:
One certain piece of land situated in said Village of Higganum in said Town of Haddam bounded and described as follows: Northerly by other land of said Releasor [Russell), Easterly by highway, Southerly by Highway formerly known as the Middlesex Turnpike, Westerly by land of heirs of Daniel and Caleb Brainard; said premises are further described as follows: Commencing at the South East corner of said premises running Northerly One hundred and Seventy-five (175) feet more or less to an iron stake, thence Westerly parallel with the said Middlesex Turnpike so-called to land of said heirs of Daniel and Caleb Brainard, thence Southerly along said land of said heirs of Daniel and Caleb Brainard One hundred and Seventy-five (175) feet more or less to said Middlesex Turnpike, thence along said Turnpike to place of beginning.
Plaintiff's Ex. 7 was a deed by which the Trustees of Eureka Council No. 42 (sic) Order of United American Mechanics conveyed the land described in Plaintiff's Ex. 6 to Albert L. Brainerd on April 19, 1909. The deed was recorded on April 30, 1909, in Volume 50, Page 164. In the signature area, the Trustees were correctly stated to be of Eureka Council No. 43. The land was described by identifying the four abutting property owners, without giving the length of the four boundary lines, and by stating: "For further description reference is made to Haddam Land Records Vol. 44 Page 464," the root deed (Plaintiff's Ex. 6). In the case of Plaintiff's Exhibit 7, the complete legal description of the property was readily available in the recorded root deed, which was incorporated by reference.
Plaintiff's Ex. 8 was the Probate Certificate of Distribution issued after the death of Albert L. Brainerd, who died intestate. The decedent's real estate was "set to" Floyd A. Brainerd, the decedent's son. As in the prior deed, Plaintiff's Ex. 7, the land was described by identifying the four abutters and with specific reference "to deed recorded in Haddam Land CT Page 11968-ar Records, Volume 44, Page 464," the root deed. This Probate Certificate is recorded in Vol. 67, Page 429, of the Haddam Land Records.
Plaintiff's Ex. 10 was a quitclaim deed from the heirs (wife and two daughters) of Floyd A. Brainerd, who had died intestate on August 11, 1965, still owning the property that he had inherited from his father, to Anthony Giurintano. This deed contained the following legal description:
Beginning at a point, which point marks the intersection of Route 9 and a highway now or formerly known as Cross Street; THENCE running Northerly along said Cross Street a distance of One hundred thirty-five (135') feet, more or less, to a point; THENCE running Westerly a distance of One hundred (100') feet, more or less, along property now or formerly of Calliari (Calliari) to a point; THENCE running Southerly a distance of one hundred thirty (130') feet, more or less, to Route 9; THENCE running in an Easterly direction along said Route 9 a distance of One hundred eight (108') feet, more or less, to the point or place of beginning. Said piece or parcel of land is designated as parcel #14-1 on "Map #14A — insert # 1 of the Haddam Tax Assessor."
Being all and the same premises as recorded in the Haddam Land Records, Volume 67, Page 429. The purpose of this deed is to convey any and all interest which we, the Grantors have in and to the herein described premises, as the wife and only children of the said FLOYD A. BRAINERD, who died intestate on August 11, 1965 as a resident of Plymouth Road, Providence, Rhode Island.
This deed was dated December 13, 1967, and was recorded in Volume 101, Page 156. Plaintiff's Ex. 10 contained an error, in that the Easterly and Westerly boundary lines were misstated (135 feet instead of 175 feet and 130 feet instead of 175 feet). The deed also made reference to "Assessor's Map #14A — Insert # 1" the 1960 version of which is included with later assessor's maps as Defendant's Ex. A, which showed the same 135 feet and 130 feet East and West boundaries. The "Being all and the same premises . . ." sentence, and the following sentence, which stated that the deed was intended to convey all of the decedent's land, CT Page 11968-as eliminated the uncertainty created by the incorrect length of the boundary lines and the incorrect assessor's map. This deed effectively conveyed all of the grantors' interest in the property to Mr. Giurintano.
Immediately after purchasing the Brainerd property, (which consisted of the land on the westerly side of Calliari Place and a second piece of land abutting the easterly side of Calliari Place and the westerly side of Parsonage Road), Mr. Giurintano conveyed an undivided half interest in both to his wife, Rosa (Plaintiff's Ex. 11). The deed was dated January 26, 1968, and was recorded in Volume 101, Page 157.
By quitclaim deed dated October 25, 1988, the Giurintanos conveyed the subject property on the westerly side of Calliari Place to Frank F. Smith (Plaintiff's Ex. 1). The person who drafted the deed used the same legal description as contained in the Brainerds' deed to Mr. Giurintano, (Plaintiff's Ex. 10) stating that the easterly and westerly boundaries were 135 feet and 130 feet, respectively, and again referencing the incorrect assessor's map. Unlike Plaintiff's Ex. 10, Plaintiff's Ex. 1 did not contain a prior deed reference or the additional language that clarified exactly what was being conveyed, with the result that the Giurintanos continued to own the northerly forty (40) feet of the property that they were intending to convey to Mr. Smith. In an attempt to resolve the problem, they executed a Corrective Quitclaim Deed on March 8, 2005, which deed was recorded in the Haddam Land Records on April 5, 2005, in Volume 288, Page 226 (Plaintiff's Ex. 5), which purported to convey the additional forty (40) feet to the plaintiff.
Mr. Padawer's root deed was a warranty deed from Russell Manufacturing Company to Luther P. Perry dated May 18, 1920, a conveyance of nine (9) tracts of land that occurred twenty-three years after Russell had conveyed the Smith land to the Trustees of Eureka Council (Plaintiff's Ex. 6). This deed was recorded in Volume 54, Page 74 of the Land Records. By quitclaim deed dated July 3, 1920, Mr. Perry conveyed the same nine (9) tracts of land to The Frissell Fabric Company, which deed was recorded in Volume 56, Page 38. The Frissell Fabric Company conveyed one of those nine tracts, with three houses thereon, to Pietro Todeschini by quitclaim deed dated September 23, 1924. (Plaintiff's Ex. 14). This deed was recorded in Volume 56, Page 195. The conveyed property was described as being bounded on the South by the Middlesex Turnpike, which was erroneous in view of Russell's prior conveyance of the Smith land to the Trustees of Eureka Council.
By quitclaim deed dated July 11, 1925, Pietro Todeschini conveyed the following described property to Joel E. Spencer: CT Page 11968-at
[A] certain piece or parcel of land . . . with dwelling house thereon standing, containing one-quarter acre, more or less, and bounded and described as follows, viz: northerly by Highway leading to the Connecticut Valley R.R. Station, Easterly by land of Grantor; Southerly by Middlesex Turnpike; and Westerly by Ponsett Brook, so-called.
Being a part of the premises conveyed to me from The Frissell Fabric Company by deed dated September 23rd, 1924, and recorded in Haddam Land Records, Vol. 56, Pg. 195.
Said deed was recorded in Volume 56, Page 231 (Plaintiff's Ex. 15).
By quitclaim deed dated November 22, 1926, Joel E. Spencer conveyed his property to Luigi Calliari, which deed was recorded in Volume 56, Page 334 (Plaintiff's Ex. 16). Apparently Mr. Spencer had discovered that his deed from Mr. Todeschini misstated his southerly boundary line as the Middlesex Turnpike, as the deed that Mr. Spencer signed corrected that error. While the property being conveyed was stated to be "one quarter acre, more or less," the same as set forth in his deed from Todeschini, the southerly abutter was corrected to Albert Brainerd. In fact, by virtue of Plaintiff's Ex. 7, at the time that Mr. Spencer conveyed his property to Mr. Calliari in 1926, Albert L. Brainerd owned the land abutting his (Spencer's) southerly boundary.
Plaintiff's Ex. 17 is the Certificate of Descent dated April 10, 1965, recorded in Volume 97, Page 338, following the death of Luigi Calliari, confirming that title to his property passed to Olivia Calliari and Viola C. Salkauskas. By Warranty deed dated September 1, 1965, Calliari and Salkauskas conveyed the same property, described as "containing one-quarter acre (1/4) more or less" to John Jacob Nosal (Plaintiff's Ex. 18). This deed was recorded in Volume 79, Page 460. Following Mr. Nosal's death, the executrix of his estate executed a deed to convey the decedent's property to William J. Spitzmacher and Lillian J. Spitzmacher. This deed was recorded on April 1, 1974, in Volume 121, Page 310 (Plaintiff's Ex. 19). The legal description contained therein is identical to the legal description contained in all of the prior conveyances starting with the deed from Spencer to Calliari in 1926 (Plaintiff's Ex. 16), identifying all four abutters and stating that the property contained one-quarter acre, more or less.
Mr. Spitzmacher died on November 10, 1998, and his undivided one-half CT Page 11968-au interest in the jointly owned property passed to his widow, Lillian Spitzmacher. A Tax Certificate for the Land Records was recorded on March 8, 1999, in Volume 223, Page 272.
By warranty deed recorded May 15, 2000, Lillian Spitzmacher conveyed the property to the defendant, Bernard Padawer, again using the same legal description dating back to 1926, which described the property as containing one-quarter acre of land, more or less. This deed was recorded in Volume 230, Page 972 (Plaintiff's Ex. 21).
The location of Saybrook Road is monumented, and the road has not been relocated, at least since the 1931 Connecticut highway map was filed. There were no historical maps on file showing either party's property, and no certificates of taking or condemnation to suggest that Mr. Smith's southerly boundary line had been relocated.
Plaintiff's Ex. 4, the Bergan survey, is consistent with the boundaries of the plaintiff's property as established by the documents in the plaintiff's chain of title up to and including the deed into Ms. Giurintano in 1967 (Plaintiff's Ex. 11).
When the Giurintanos conveyed the property to the plaintiff in 1988, their intent was to convey all the property that they had acquired from the Brainerds, and they were not aware that the description they used for the east and west boundary lines did not reflect what the boundaries actually were. However, unlike previous deeds in the plaintiff's chain, this deed did not contain a prior deed reference or additional language that would have resulted in the inclusion of the forty (40) feet. Therefore, this deed to the plaintiff did not convey the northerly 40 feet of the property; it was retained by the Giurintanos. In order to correct this, they executed a Corrective Quitclaim Deed on March 8, 2005 to the plaintiff which purported to convey the additional 40 feet.
B. FACTS RELATIVE TO ADVERSE POSSESSION
From 1969 to 1973, Mr. Giurintano cultivated a large vegetable garden in the disputed area. He stopped doing this when his new house was finished on the east side of Calliari Place (fronting on Parsonage Road). The defendant's predecessors in title, Mr. and Mrs. Spitzmacher, took possession of their property in 1974. In July 1977, the Giurintanos moved to Mississippi. The following spring, 1978, Mr. Spitizmacher planted and cultivated a garden even larger than Mr. Giurintano's, which occupied most of the grassy area shown on the Bergan survey. Mr. Spitzmacher regularly mowed that part of the grassy area not covered by the garden. He used an old outhouse in the disputed area for storage of CT Page 11968-av his garden tools. Mr. Spitzmacher used the disputed area in this manner until approximately 1996. The outhouse and garden were clearly visible from the plaintiff's property on the south, and from Calliari Place on the east.
Mr. Spitzmacher installed a new septic system in 1979-80, which involved digging trenches on part of the disputed 40.¹ The digging and excavating occurred over a period of many months, and was highly visible.
The Spitzmachers were never challenged or complained to by either the Giurintanos or Mr. Smith from the time they began using the disputed area.
Defendant's Ex. P, a photo taken by the Spitzmachers in the late 1970s, shows very clearly and obviously, a large garden, a white fence and the former outhouse, all on the disputed "grassy area," and all being used and maintained by the Spitzmachers.
Mrs. Spitzmacher occasionally sunbathed in the disputed area and the family picnicked there. Mr. Spitzmacher planted a tree and maintained a hedge in the disputed area.
Beginning in approximately 1978, and continuing for approximately 24 years, neither the Giurintanos nor Mr. Smith made any use whatsoever of the area, whereas during the same period, the Spitzmachers, by their patent and obvious actions, ousted the owners from possession and kept them out uninterruptedly for 15 years by open, visible and exclusive possession, without license or consent of the owners. The incursions were egregious.
From the time of the Giurintano deed to the plaintiff in 1988, until 2003, the plaintiff did nothing indicating that he was asserting ownership of the disputed area or questioning the Spitzmacher or Padawer use of that area; nor did the Giurintanos after 1977.
At no time during the period from 1977 to 2003, did the plaintiff or the Giurintanos perform any act that would have reinstated them in possession; the continued adverse possession was not interrupted. There was no entry.
Since the defendant purchased his property in 2000, he has mowed the large gassy area, removed the outhouse and hedge, and removed trees and a fence immediately after they were placed there by the plaintiff in 2003, along what the plaintiff believed to be his north boundary. CT Page 11968-aw
III. DISCUSSION A. PLAINTIFF'S COMPLAINT
The plaintiff's complaint sounds solely in Trespass, (Par. 6). He has alleged that he has record title to the disputed property shown on the Class A-2 Survey. He has not alleged possession of the property. In his Answer, the defendant left the plaintiff to his proof as to ownership, and denied any Trespass. The plaintiff has also alleged that he has no adequate remedy at law, and in his ad damnum seeks money damages and several "cease and desist" orders as to certain claimed Trespasses, as well as an order that the defendant remove a septic system and/or leach field from the plaintiff's property.
The only portion of the plaintiff's land that is in dispute here is the northerly 40 feet of the premises shown on the survey referred to in paragraph 2 of the complaint.
The plaintiff has not alleged actual possession of the 40 feet. He is seeking an injunction and damages for alleged acts of Trespass.
When an injunction is sought against continuing acts of trespass, Title is always an essential allegation and must be established. McNamara v. Watertown, 100 Conn. 575, 579, 124 A. 244. Since trespass is a possessor action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to recover. Banks v. Watrous, 136 Conn. 597, 599, 73 A.2d 329. If he relies on constructive possession, as distinguished from actual possession, he must prove, in addition to his title, the absence of actual exclusive possession by another. Radican v. Hughes, 86 Conn. 536, 545, 86 A. 220; Waterbury Clock Co. v. Irion, 71 Conn. 254, 262, 41 A. 827; Dawson v. Davis, 125 Conn. 330, 334, 5 A.2d 703. And if he seeks to enforce his rights by a mandatory injunction, he must show actual possession in himself since injunctive relief cannot be used to take property out of the possession of one person in order to put it into the possession of another. Roy v. Moore, 85 Conn. 159, 166, 82 A. 233.
More v. Urbano, 151 Conn. 381, 383-84 (1964). CT Page 11968-ax
In its complaint the plaintiff alleged that it was the owner and in possession of the land in dispute. Where both damages for trespass and an injunction are sought and the answer is a general denial, both title to the disputed area and possession are placed in issue. More v. Urbano, 151 Conn. 381, 383, 198 A.2d 211. Title is an essential element in a plaintiff's case where an injunction is sought to restrain a trespass. Barrs v. Zukowski, 148 Conn. 158, 165, 169 A.2d 23. Since trespass is a possessor action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail. More v. Urbano, supra. Proof of its title and the absence of actual, exclusive possession by another are sufficient to show constructive possession in the plaintiff. Banks v. Watrous, 136 Conn. 597, 599, 73 A.2d 329.
Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462 (1973).
Since the plaintiff is seeking injunctive relief to restrain acts of trespass, and because he hasn't alleged actual possession, he has to prove constructive possession, trespass being a possessor action. He must prove that he has title and that no one else has actual exclusive possession, in order to establish constructive possession.
1. DOES PLAINTIFF HAVE TITLE?
Inasmuch as the 1988 deed from the Giurintanos to the plaintiff did not convey the 40 feet in question, the only way that he could have title would be by the 2005 deed from the Giurintanos.
The defendant argues that the 2005 deed is void under Section 47-21 of the Connecticut General Statutes.
Finally, error is assigned by the defendants Parese in the overruling of their claim that § 47-21 of the General Statutes makes void a deed by one out of possession and the claim that the plaintiff took nothing as to the area in dispute because not only is there no evidence of the plaintiff's predecessors' lack of possession but there is affirmative evidence of possession by the defendants Parese. Section 47-21 CT Page 11968-ay states that "[a]ny conveyance or lease, for any term, of any building, land or tenement, of which the grantor or lessor is ousted by the entry and possession of another, unless made to the person in actual possession, shall be void." The possession necessary to constitute an ouster under § 47-21 is not some fleeting or ephemeral technical invasion of the property . . . Rather, it is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession. Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150. As already stated, the essential elements of an adverse possession sufficient to create title to the land in the claimant are that the owner shall be ousted of his possession and kept out uninterruptedly for a period of fifteen years, by an open, visible and exclusive possession by the claimant without the license or consent of the owner. Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385; Barrs v. Zukowski, supra.
See Wadsworth, supra, Page 465.
The court concludes that the grantors, (Giurintano), had long since been ousted by the entry and possession of another, which possession was open, visible and exclusive, without the license or consent of the grantors. This 2005 conveyance was made to the plaintiff, who was not in actual possession, and therefore is void. Therefore the plaintiff never received title to the 40 feet in question.
Furthermore, even if the plaintiff did have title from the 2005 deed, he would have to prove that no one else has actual possession. See Wadsworth Realty Co. v. Sundberg, ( supra). He has failed to sustain this burden.
Judgment is entered for the defendant on the complaint on the ground that the plaintiff failed to establish that the disputed area was ever conveyed to him.
B. DEFENDANT'S STATEMENT OF CLAIM 1. COUNT ONE CT Page 11968-bz
In Count One the defendant alleges that "this counterclaim is grounded on Connecticut General Statutes § 47-31," which is entitled "Action to settle title or claim interest in real or personal property." He alleges that his property includes the northerly 40 feet of the premises claimed by the plaintiff and he is seeking a judgment determining the rights of the parties to that 40 feet. He claims title to the disputed 40 feet by Warranty Deed of Lillian J. Spitzmacher. (Plaintiff's Exhibit 21.)
The plaintiff originally brought this action pursuant to § 47-32, which provides a judicial mechanism for parties asserting competing interests in real or personal property to settle the issue of title. The prevailing party must prove its title or interest in the disputed property by a preponderance of the evidence. See Loed v. AlMor Corp., 42 Conn.Sup. 279, 287, 615 A.2d 182 (1991), aff'd, 224 Conn. 6, 615 A.2d 149 (1992). Moreover, that party must prevail on the strength of its own title and not on the weakness of its adversary's title. Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967).
Remington Investments, Inc. v. National Properties, Inc., 49 Conn.App. 789, 797 (1998).
Inasmuch as earlier in this Memorandum of Decision, the court has found in its finding of facts under "Facts Relative To Record Title," that the 40 feet in dispute was owned by plaintiff's predecessors in title down to and including Mr. Giurintano, it was not in the defendant's chain of title and was not conveyed to him. Therefore the defendant has failed to sustain his burden of proof in Count One.
2. COUNT TWO
In this counterclaim, also grounded on Section 47-31, the defendant claims sole and exclusive title to the disputed 40 feet by virtue of adverse possession.
[T]o establish title by adverse possession, the CT Page 11968-ba 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. (Internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 622, 722 a.2d 1128, cert. denied, 256 Conn. 919, 774 A.2d 137 (2001); see also General Statutes § 52-575(a).
Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., Conn.App. 839, 842-43 (2002).
The doctrine of adverse possession is to be taken strictly. [Such a] possession is not to be made out by inference, but by clear and positive proof. Huntington v. Whaley, 29 Conn. 391 [398 (1860)]." Robinson v. Myers, 156 Conn. 517, 516, 244 A.2d 385 (1968). "Clear and positive proof" embodies the same substantive standard as "clear and convincing proof." Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989).
Schulz v. Syvertsen, 219 Conn. 81, 91 (1991).
The fact that the adverse use was primarily seasonal, does not militate against adverse possession. The use of mowing and having a vegetable garden, was such that, by its nature, would not take place in the winter.
Regular and adverse use of property during the summer season is a sufficient basis for a claim of adverse possession.
Roche v. Fairfield, 186 Conn. 490, 501 Note 11, (1982).
"[P]ossession [which is] actual, visible and notorious, exclusive, continuous and hostile . . . would give the plaintiff[s] title by adverse possession unless the running of the statute was shown by other facts to have been effectively interrupted." Ahern v. Travelers Ins. Co., 108 Conn. 1, 4-5, 142 A. 400 (1928). In order to interrupt continued adverse possession, the record owner "must assert his claim to the land, perform some act that would reinstate him in CT Page 11968-bb possession, before he can regain what he has lost." (Emphasis added.) Id., 7, quoting Burrows v. Gallup, 32 Conn. 493, 499 (1865). A demand letter, however, is not an act which would "reinstate the defendants] in possession." Merely apprising the plaintiffs of the defendants' claim to the disputed area does not disturb the plaintiffs' possession, because there has been no "entry" as required by statute; see General Statutes § 52-575; and because the plaintiffs "could have maintained no action on account of it." Huntington v. Whaley, supra, 398. Moreover, we note that our Supreme Court, in a case in which even more effort was used to interrupt a continuing adverse possession than was asserted here, pointed out long ago that "it has never been held that an isolated instance of attempted interruption of the user, resulting in no actual interruption, and followed by no attempt to test the right, would as a matter of law necessarily destroy the presumption of a grant founded on a user in other respects sufficient." Connor v. Sullivan, 40 Conn. 26, 30 (1873). A demand letter, like "[a] verbal protest by the owner against occupancy of the land by an adverse holder, without an actual entry or an action by the owner, is without avail, because the owner is still disseised; the statute is not interrupted by the owner's notice to an occupant that a [shed] has been built over on the lot of the owner, in the absence of any overt act by the owner to oust the occupant." 3 Am.Jur.2d, Adverse Possession § 124.
"[General Statutes] Sec. 52-575. ENTRY UPON LAND TO BE MADE WITHIN FIFTEEN YEARS. No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless an action is commenced thereupon and prosecuted to effect within one year next after such entry; but, if any person who has such right or title of entry into any lands or tenements is, at the time of the first descending or accruing of such right or title, a minor, non compos mentis or imprisoned, he and his heirs may, notwithstanding the expiration of such fifteen years, bring such action or make such entry at any time within five years next after full age, coming of sound mind or enlargement out of prison, or his heirs shall, within five years after his death, bring such action, or make such entry, and take benefit of the same; provided the limitation herein CT Page 11968-bd prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate." Woycik v. Woycik, 13 Conn.App. 525-26 (1988).
The court concludes, from the facts found in this case, that the defendant has proved by clear, positive and convincing proof that the Giurintanos and the plaintiff were ousted of possession of the disputed area and kept out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent of the possessor to use the property as his own, without the consent of the owner.
The court enters judgment in favor of the defendant in Count Two of his counterclaim, and determines that the defendant is the owner of the property consisting of the northerly-most 40 feet shown on the Bergan survey (Plaintiff's Exhibit 4), more specifically described as follows: CT Page 11968-bc
All that certain piece or parcel of land together with all improvements thereon, situated on the westerly side of Calliari Place in the Town of Haddam, County of Middlesex and State of Connecticut and being a portion of the premises shown on a map entitled "SURVEY MAP Property Of FRANK E. SMITH Caliari Place Haddam, Conn. 1" = 20' Aug. 19, 2003 Revisions: Sept. 8, 2003 — Catch Basin and Septic Field William B. Bergan Land Surveyor Haddam, Conn." to which map reference is hereby made and being bounded and described as follows:
NORTHERLY: by other land shown and designated as N/F Bernard Padawer, as shown on said map, 94 feet, more or less;
EASTERLY: by Caliari Place as shown on said map, 40.00 feet;
SOUTHERLY: by land of Frank F. Smith, 94 feet, more or less;
WESTERLY: by Ponset Brook as shown on said map, 40.00 feet
RICHARD A. WALSH
JUDGE TRIAL REFEREE