Opinion
No. CV 01 0084935S
October 21, 2003
MEMORANDUM OF DECISION
This action to quiet title was tried to the court over a period of four days. Both parties were represented by experienced counsel who called numerous witnesses and introduced myriad exhibits. In essence, the parties ask the court to determine the ownership of approximately 15 acres of land in Sharon, Connecticut, ("the land in dispute").
The plaintiffs' complaint is an action to settle title pursuant to the provisions of C.G.S. Section 47-3. The plaintiffs claim to be the record owners of the land in dispute. The defendants have filed an answer denying the plaintiff's record ownership, although at trial they admitted that the plaintiffs own approximately 4 of the 15 acres. The defendants also claim by special defense that they have acquired title to the land in dispute by virtue of adverse possession. The defendants also filed a counterclaim asking that title to the land in dispute be settled in them by adverse possession, or alternatively, by virtue of title acquired by deed.
I. FACTS FOUND
The land in dispute is vacant and mostly wooded. It lies west of South Ellsworth Road and Morey Road, and south of Northrup Road in Sharon, Connecticut. It was once part of a much larger parcel of land acquired in 1877 by Charles B. Everett, the common grantor in the plaintiffs' and defendants' chains of title. By warranty deed dated April 1, 1879 Charles B. Everett conveyed to Giles Skiff two pieces of land. The first piece (with the exception of about 3 acres sold off in 1881) is the land in dispute. It was cut from a larger contiguous tract of land using a newly created description. The second piece lies on the opposite side of South Ellsworth Road and is not contiguous with the first piece. These two pieces were described in the Everett to Skiff deed as follows.
"The first piece is bounded Northerly on highway leading from Eben W. Chaffee to Cornwall Bridge about forty six rods to stones on a rock. Thence southerly to South East corner of cider mill lot so called. Thence Westerly in line of said lot to the highway leading from the dwelling of Garry S. Morey to Sharon. Thence Northerly in line of said highway to the first mentioned highway and corner opposite the dwelling of Eben W. Chaffee being the place of beginning. The second piece is bounded Northerly by land of Eben W. Chaffee Westerly by land of Eben W. Chaffee and Gibbs W. Skiff Southerly by highway leading from the dwelling of Giles Skiff to Kent and Easterly by the highway leading from Garry S. Moreys to Sharon, containing in all about forty acres be the same more or less, being land conveyed to me by Joshua B. Chaffee."
On December 2, 1881 Giles Skiff deeded to Charles W. Monroe a parcel of roughly 3 acres ("the Monroe parcel"). This parcel was cut from the northeasterly part of the first piece received from Charles B. Everett. With slight differences, the parties agree on the boundaries of the Monroe parcel, the easterly side of which runs in a generally southerly direction from the "stones on a rock" referred to in the Everett to Skiff deed. By subsequent conveyances, the plaintiffs acquired title to the balance of the first piece received from Charles B. Everett. The dispute is about the boundaries of this first piece.
The defendants' chain of title also traces back to Charles B. Everett. In 1884 Mr. Everett conveyed to the defendants' predecessor, William B. Northrup, property described as follows.
"North by the highway leading from Eben W. Chaffee's to Cornwall Bridge. East by said WH Northrup. South by said Northrup Charles W. Monroe Eben W. Chaffee. West by the highway leading from Garry S. Morey's to Eben W. Chaffee's by Giles Skiff Charles W. Monroe. Said piece containing seventy five acres more or less." The defendants contend that this description encompasses all but approximately 4 of the 15 acres claimed by the plaintiffs.
This same property conveyed to William B. Northrup was subsequently reacquired by Charles B. Everett in 1901. On March 16, 1906 Charles B. Everett conveyed this property to William Palmer, the grandfather of the defendants. Mr. Palmer owned and used it as part of a dairy farm until his death in 1952 at which time title passed to William Lathrop Palmer, the father of the defendants. From about 1948 until about 1961 it was leased to tenant farmers in the dairy business. The land in dispute was not used for pasturage or crops by the Palmer family. For an undetermined time in the 1940s and 1950s the Palmer family cut fire wood on occasion on undetermined easterly portions of the land in dispute. At sporadic times from the 1940s to the present the defendants have hunted on the land in dispute. At various times of unknown duration the defendants have posted "no trespassing" signs along portions of the roads adjoining the land in dispute.
On May 21, 1913 Giles Skiff conveyed to Carrie T. Chaffee the first piece which he acquired from Charles B. Everett in 1879 less the Monroe piece. The property is described as follows: "bounded northerly by the highway leading from E.W. Chaffee homestead so called to Cornwall Bridge, and by land formerly of Charles W. Monroe; Easterly by land formerly of said Monroe and land formerly of Charles B. Everett; Southerly by land formerly of said Everett; and Westerly by the highway leading from the Morey farm to Sharon; containing fifteen acres more or less: Being the first piece of land described in the deed from Charles B. Everett to said Giles Skiff, dated April 1, 1879, and recorded in said Sharon Land Records, Volume 36, page 212, except about three acres thereof subsequently conveyed by said Giles Skiff to Charles W. Monroe." By subsequent conveyances the plaintiffs acquired record title to this property.
Also on May 21, 1913 Carrie T. Chaffee leased to Giles Skiff and his son "the right and privilege of watering live stock at a certain spring in the south-westerly corner of a tract of land in said town of Sharon, on the easterly side of the highway leading from the Morey farm to Sharon, and conveyed by the said Giles Skiff, to said Carrie T. Chaffee by deed of even date herewith to which reference is hereby made. Together with the right of access by said live stock to said spring through a gate substantially opposite said spring in the fence along said highway. It being understood and agreed that said lessees are to maintain said gate and keep the same closed when not in actual use." There is a spring in the south westerly corner of the land claimed by the plaintiffs. There is an old well in the south westerly corner of the land conceded by the defendants to belong to the plaintiffs by record title.
In the late 1940s the defendant, Fred Palmer, helped his grandfather, William Palmer, install a barbed wire fence along a line which approximates the line shown on the plaintiffs' survey as the boundary line separating the properties of the parties. The remains of that fence still exist. The fence ran "tree to tree" and ended at a point marked by a heap of stones and an existing iron pipe. This point is shown on the defendants' survey as Point "A." It represents the plaintiffs' claim as to the location of the south east corner of the cider mill lot.
On October 31, 1964 the defendants' father, William Lathrop Palmer, conveyed a 6-acre portion of this land to William J. Haynes. The deed contains a description which references a survey map prepared by Charles H. Wilford, surveyor. The map is entitled, "Map showing Property of W. Lathrop Palmer to be conveyed to William J. Haynes." The southerly portion of the land in dispute is shown as being owned by "Chaffee Est. N/F" rather than by W. Lathrop Palmer, the defendants' predecessor in title. The boundary between the land of W. Lathrop Palmer and "Chaffee Est. N/F" is shown as a wire fence which is the same wire fence installed in the late 1940s by William Palmer and shown as the boundary of the Palmer land on the Sterling map.
II. RECORD TITLE A. The Language of the Everett to Skiff Deed
Both parties claim record title to the land in dispute, and the defendants claim, alternatively, that they have acquired title by adverse possession. 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). The plaintiffs have the burden of proof on their complaint and the defendants have the burden of proof on their counterclaim. In connection with the claims of record title, the burden of proof is the customary preponderance of the evidence standard. The parties must prevail on the strength of their own claims and not on the weakness of their adversary's claim. Koennicke v. Maiorano, 43 Conn. App. 1, 9 (1996).
The claims of record title made by both parties depend upon the legal effect of the Everett to Skiff deed. The plaintiffs' claim is based on a survey map prepared by Robert C. Sterling ("the Sterling map"), a licensed land surveyor. The defendants' claim is based on a survey map prepared by Peter A. Lamb ("the Lamb map"), a licensed land surveyor. The two maps agree upon the northerly boundary of the disputed land as being Northrup Road, in part, and the southerly boundary of the Monroe land. It is the next course and distance which is the nub of the case. The deed from Everett to Skiff contains this call: "Thence southerly to South East corner of cider mill lot so called." The Sterling map shows this line as being an extension of the easterly boundary of the Monroe parcel. It runs in a generally southerly direction from the iron pin on at the southeast corner of the Monroe parcel for a distance of 912.97 feet to an iron pipe which Mr. Sterling testified was, in his opinion, the south east corner of the cider mill lot. The Lamb map shows this line running in a generally westerly direction from the southeast corner of the Monroe parcel for 169.426 feet, and then turning and running in a generally southerly direction for 102.13 feet to a point which is identified as the "Assumed South East Corner of Cider Mill Lot."
"In construing a deed, a court must consider the language and terms of the instrument as a whole . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties . . . In arriving at the intent expressed . . . it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of the evidence. In determining the location of a boundary line expressed in a deed, if the description is clear and unambiguous, it governs and the actual intent of the parties is irrelevant." (Internal quotations marks and citations omitted.) Mackie v. Hull, 69 Conn. App. 538, 542 (2002). When attempting to discern the "expressed intention" of the parties to the Everett to Skiff deed, the rules of construction set forth in the cases provide 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. 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 of the parties." (Internal citations and quotation marks omitted.) Koennicke v. Maiorano, 43 Conn. App. 1, 10-11 (1996).
In determining the "expressed intention" of the Everett to Skiff deed regarding the easterly boundary of land conveyed, the court must first look to known and fixed monuments which are definite and certain. The point marked by "stones on a rock" on the southerly side of Northrup Road is a known and fixed monument. Both surveyors agree upon the location of this point. The next point in the description is the "South East corner of the cider mill lot, so called." No one testified who claimed to have personal knowledge of the location of the cider mill lot or its south east corner. Undoubtedly, the location of this lot was common knowledge in the neighborhood in 1879. This knowledge seems to have been lost to the mists of time. Therefore, the "South East corner of the cider mill lot" is not a known and fixed monument which is definite and certain.
Having looked for known and fixed monuments, the court must next look to "courses and distances." The Everett to Skiff deed describes a southerly course from the stones on a rock for an unknown distance. The Sterling map more accurately displays this expressed intention. It shows an easterly boundary which runs in a straight line in a southerly course as called for in the deed from Everett to Skiff. The course shown on the Lamb map runs southerly, then westerly, then southerly again, creating a westerly jog in the boundary of 169 feet. "In the absence of some controlling indication to the contrary, when a description of the boundaries of land calls for a line from one monument to another, the law presumes that a straight line is intended." 12 Am.Jur.2d Boundaries, Section 52 (1997). Although this principle of construction does not seem to have been addressed in any reported cases in Connecticut, it appears to be a common sense application of the principle that clear and unambiguous language of a description should govern the search for intent. The description in the Everett to Skiff deed was newly created in 1879 when Charles P. Everett severed part of his land and conveyed it to Giles Skiff. It is not likely that the parties would have neglected to refer to a right angle jog of 169 feet to the west. It is more likely that the call for, "Thence southerly to south east corner of cider mill lot so called" refers to a straight line running between these two points. This is a clear and unambiguous call for a boundary which runs southerly. Therefore, the south east corner of the cider mill lot lies on the straight line shown on the Sterling map which runs in a generally southerly direction from the iron pin marking the south east corner of the Monroe lot.
The final and least reliable call to be considered is acreage. The defendants point to the language of the Everett to Skiff deed which states: ". . . containing in all about forty acres be the same more or less . . ." They argue that this language means that the combined acreage of the first and second pieces described in that deed was intended to be about forty acres. Since the second piece was described in a 1829 deed in the Everett chain to contain 31 acres, the defendants argue that the first piece was intended to contain about 9 acres. Therefore, after the 3-acre conveyance to Monroe, the defendants claim that the disputed land should contain about 6 acres. But, since the second piece has been surveyed to contain about 33 acres, the first piece would be about 7 acres. Finally, the defendants argue that, after the conveyance to Monroe, the disputed land must actually be about 4 acres. This is the approximate size of the land shown on the Lamb map as belonging to the plaintiffs.
Unfortunately, resort to the call for "40 acres be the same more or less" set forth in the Everett to Skiff deed is not helpful. The language of the deed makes several interpretations possible. Since the second piece had been referred to in an earlier deed as containing about 31 acres, it is possible that the parties intended that the first piece be about 9 acres. It is also possible that the grantor and grantee mistakenly assumed that the first piece contained about 9 acres when it actually contained 18 acres, although this would be stretching the words "more or less" to the limit of reasonableness. It is also possible that the parties made a new estimation of the size of the second piece and under-estimated it to be something less than 31 acres and estimated the first piece to be something more than 9 acres. But, the most likely interpretation of the sentence construction in this deed is that the 40-acre call refers to an updated estimate of the size of the second piece only. We know from current surveys that the first piece is actually about 33 acres. Therefore, an estimate of 40 acres, more or less, is an over-estimation of about 21%. This is well within the realm of reason. But the strongest argument in favor of applying the 40-acre call to the second piece only lies in the nature of the two pieces and the language of the description itself. The two pieces are not contiguous, and are separated by a public road. The first piece is described in four separate sentences. The second piece is described in one sentence which also contains the acreage call of 40 acres. It makes more sense logically and grammatically that the 40-acre call contained in the description of the non-contiguous second piece does not apply to the first piece. Therefore, we are left with no acreage call for the first piece.
In summary, the description in the Everett to Skiff deed of an easterly boundary which runs southerly from the heap of stones on Northrup Road is clear and unambiguous. This boundary was intended to run in a straight line. The language of the deed terminating this easterly boundary at the south east corner of the cider mill lot is also clear and unambiguous. The Lamb map does not accurately portray the intention of the parties to the Everett to Skiff deed that the southeast corner of the cider mill lot is located on the southerly extension of the easterly boundary of the Monroe lot. But, the language of the Everett to Skiff deed gives no clue as to where on this southerly extension the southeast corner of the cider mill is located. Resort to the acreage call in the Everett to Skiff deed is not helpful. Therefore, in order for the plaintiffs to prove record title as shown on the Sterling map, they must resort to other evidence of intent outside of the language of the Everett to Skiff deed.
II. Evidence of Intent Outside of the Language of the Everett to Skiff Deed
The defendants base their analysis of evidence outside of the Everett to Skiff deed primarily upon acreage calls reflected in the exhaustive title search work performed by Attorney William Manasse. Attorney Manasse searched the title to all property owned by Everett. This resulted in eight separate chains of title. As a result of this work, Attorney Manasse testified about the situation of Mr. Everett in 1879, including the several parcels he owned and the subsequent transfers. Attorney Manasse opined that, based upon this research, the deed from Giles Skiff to Carrie T. Chaffee could not have contained 15 acres. This is because subsequent surveys have shown that Charles B. Everett only owned about 82 acres before his conveyance to Giles Skiff. It was not possible for him to convey 18 acres to Giles Skiff and 75 acres to William B. Northrup. The defendants argue that the conveyance to Skiff must have only been about 7 acres. Therefore, after the 3-acre conveyance to Monroe, the plaintiffs would have been left with only about 4 acres.
Having considered this matter at great length, I find that acreage figures expressed in the deeds must be read so as to give effect to the words "more or less." Therefore, the conveyance from Charles B. Everett to William B. Northrup could have contained about 64 acres rather than the "75 acres more or less" recited in the deed. The property conveyed is large and irregular in shape. It is easy to see how 64 acres could have been mistakenly estimated by Mr. Everett and Mr. Northrup to be 75 acres. This represents an under-estimation of only about 15%. The words "more or less" can mean an under-estimation of this magnitude.
On the other hand, the parties to the 1913 conveyance from Giles Skiff (the other party to the Everett to Skiff deed) to Carrie T. Chaffee could not have mistakenly estimated the land in dispute to be "15 acres more or less" when it was really about 4 acres as argued by the defendants. This would be an underestimation of about 73%. It would be unreasonable to find that 4 acres could be "more or less" than 15 acres. Since Everett and Skiff presumably each knew the boundaries of the land included in the 1879 deed of the land in dispute (plus the Monroe parcel) the only way to reconcile their subsequent conveyances is to find that the defendants' claims as to the size of the land in dispute are too small.
The defendants next argue that the use of the word "cider mill lot" in the description of the first piece indicates something enclosed by natural monuments. They argue that the cider mill lot must be the rectangular piece enclosed by stone walls shown on the Lamb map as "Chaffee Residual Trust." But even Mr. Lamb refers to the southeast corner of that piece as the "Assumed South East Corner of Cider Mill Lot." I find no justification for the assumption that the word "lot" must refer to land enclosed by stone walls.
Both parties suggest that the court look at subsequent conveyances of Mr. Everett and Mr. Skiff to help determine their intent in the 1879 deed. The original grantor of the Everett to Skiff deed, Charles B. Everett, conveyed the balance of his adjoining property to William B. Northrup in 1884. Unfortunately, resort to this deed for help in learning his intent regarding the boundary line between the two properties leads to conflicting results. On the one hand, the Sterling map more accurately displays the expressed intention regarding the northerly boundary. The call for the northerly boundary of the land conveyed to Northrup is "North by the highway leading from Eban W. Chaffee's to Cornwall Bridge." The highway referred to is now Northrup Road. The Sterling map faithfully shows that the northerly boundary of the land now owned by the defendants is Northrup Road. The Lamb map inaccurately shows a northerly boundary of the defendants' land as being Northrup Road in part, the Monroe lot in part, and the plaintiffs' land in part.
On the other hand, the Lamb map more accurately displays the expressed intention of the Everett to Northrup deed regarding the westerly boundary. The call for the westerly boundary of the land conveyed to Northrup is "West by the highway leading from Garry S. Morey's to Eben W. Chaffee's by Giles Skiff Charles W. Monroe." The highway referred to is now South Ellsworth Road and Morey Road. The Lamb map faithfully shows the westerly boundary of the defendants' property as being South Ellsworth and Morey Road in part, the plaintiff's land (formerly Skiff) in part, and the Monroe lot in part. The Sterling map shows the westerly boundary as being only the plaintiffs' land. Because the Everett to Northrup deed supports the positions of both parties, in part, it is of little value in determining the intent of Mr. Everett regarding the land in dispute.
When considering evidence of intent outside of the language of the Everett to Skiff deed, the plaintiffs urge the court to look at the subsequent conveyance of Giles Skiff in 1913 to Carrie T. Chaffee. I find this conveyance to be of significance in connection with a legal presumption which is applicable to this case. As stated previously, no one knows the location of the cider mill lot. This lack of what was once common knowledge creates a latent ambiguity even though there was no latent ambiguity in 1879 when the Everett to Skiff deed was written. "A latent ambiguity arises from extraneous or collateral facts that make the meaning of a deed uncertain although its language is clear and unambiguous on its face." Marshall v. Soffer, 58 Conn. App. 737, 743 (2000). In this case the passage of time and the loss of public recollection are the extraneous or collateral facts which create the latent ambiguity as to the location of the south east corner of the cider mill lot on the line running south from Northrup Road.
"In the event a latent ambiguity is found, the ambiguous language in the grant is ordinarily construed against the grantor and in favor of the grantee, and the grantee may adopt the boundary most favorable to him." Id., 744. Here, the original grantee of the Everett to Skiff deed, Giles Skiff, adopted the boundary shown on the Sterling map. The Skiff to Chaffee deed in 1913 uses a description of the land in dispute which is consistent with the Sterling map. Also, the pasturage lease from Chaffee to Skiff refers to the pasturage of cows on the southerly portion of the land in dispute in an area of a spring which still exists. The court rejects the argument of the defendants that this lease was referring to another area near an old well. Also, the acreage figure of "15 acres more or less" in the Skiff to Chaffee deed is consistent with the plaintiffs' claim. In summary, the Skiff to Chaffee deed, when illuminated by the legal presumption based upon a latent ambiguity, is weighty evidence in favor of the Sterling map as showing the accurate boundary line.
Another reason for acceptance of the Sterling map is that it is consistent with the recorded admissions of the defendants' predecessor in title, William Lathrop Palmer. His 1964 deed to Haynes based on the map of Charles H. Wilford are clear admissions by Mr. Palmer that he did not own the land in dispute. They show that Mr. Palmer accepted the wire fence (remains of which correspond to the Sterling boundary line) as the westerly boundary of his land. This admission is contrary to the position taken by his successors in this case. Property owners, through deeds given, may make admissions against their own interests which are admissible on the issue of the uncertainty of a boundary line. See, Ladies' Seaman's Friend Society v. Halstead, 58 Conn. 144, 149 (1889).
For these reasons, the Sterling map is found to accurately reflect the boundary line between the property of the parties. The plaintiffs are found to have record title to the land in dispute lying westerly of that boundary line as reflected on the Sterling map.
Adverse Possession
The defendants claim by special defense and counterclaim that they have acquired title to the disputed land by adverse possession. In order to establish this claim, the defendants are required to prove by clear and convincing evidence that the owner of the disputed parcel was ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by open, visible, and exclusive possession of the defendants without license or consent of the owner. Oak Leaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 93-94 (1990). "Clear and convincing" evidence means the same thing as "clear and. positive" evidence. Clark v. Drska, 1 Conn. App. 481, 487 (1984).
The defendants' claim must fail because they were unable to prove by clear and convincing evidence that they and their predecessors' use was open, visible and exclusive for an uninterrupted period of fifteen (15) years. The specific claims of proof outlined in the defendants' Post-Trial Memorandum are insufficient. These claims amount to wood cutting, hunting, and the posting of "no trespassing" signs, all of which occurred at one time or another. Both of the defendants remember helping their father and grandfather cut wood on the disputed parcel during their youth. Their family used wood to heat the family home and needed an abundant supply of wood. The disputed parcel was mostly wooded and, together with other wooded land on the farm, provided fire wood for the family. The problem with this testimony is that it revealed that the uses were sporadic and small in scale in light of the size of the parcel in question. It is hard to find that a man and a boy cutting wood for household use in the midst of at least 11 acres of wooded land constitutes the sort of open and obvious use necessary to put others on notice of a claim of right to ownership of the 11 acres. The evidence was also insufficient to prove that the wood cutting on the disputed land took place continuously for 15 years.
The defendants also remember hunting on the disputed land to get food for the family. Again, this does not show an open and obvious exercise of dominion over the property. Finally, the evidence was insufficient to establish by clear and convincing evidence that the "no trespassing" signs were continuously posted for a period of 15 years. Signs were posted at times along portions of the road frontage but the court cannot find that they were posted continuously for 15 years.
The other evidence of adverse use was not helpful to the defendants. The evidence that tenant farmers leased the family farm after their grandfather sold his cows in early 1950s was not helpful to the defendants' claims because there was no credible evidence that the tenant farmers ever used the disputed land in their farming operations. It is clear that the pasturing of cows and the growing of hay and corn were all done on the portions of the Palmer family farm lying to the east of the land in dispute. There are large open fields in the east which would have been very useful for these purposes. But the land in dispute was not put to agricultural purposes.
The fence installed by the defendant, Fred Palmer, and his grandfather in the late 1940s cut off the disputed land from the rest of the Palmer farm. It is evidence that at least from that time forward the Palmer family had no open and obvious claim to the land to the west of that fence. The deed in 1962 from the defendants' father to Frederick Haynes reinforces the reasonable conclusion that Mr. Palmer had no claim to the land in dispute. The defendants, as successors in title, can have no better claim than that of their father for the time period before 1962. The only evidence of adverse use since 1962 is the hunting and the "no trespassing" signs, both of which are inadequate in light of their sporadic nature and the need to prove adverse use by clear and convincing evidence.
For all of these reasons, judgment may enter for the plaintiffs on their complaint, without costs, confirming the boundary line as shown on the map of Robert C. Sterling. Judgment may enter for the plaintiffs on the counterclaim, without costs.
By the Court,
Pickard, J.