January 31, 2005
MEMORANDUM OF DECISION
This case concerns a boundary dispute involving the plaintiffs, Donald Marks and Sylvia Marks, and the defendants RJMA Realty, LLC, Elsie Matulevich and Ronald Matulevich. Both the plaintiffs and the defendant RJMA Realty claim that they own a small piece of property in Haddam which either was, or was not, part of a larger parcel deeded to the plaintiffs' predecessors in title and in turn to them and/or to which the plaintiffs have, or have not, obtained title by adverse possession. It is undisputed that RJMA Realty, Inc. owns the property directly to the south of the plaintiffs' property (including the disputed land) and that Elsie Matulevich retains a life interest in the property owned by RJMA Realty. Elsie and Ronald Matulevich, who are mother and son, are also defendants based on the plaintiffs' claims of trespass as to Ronald in count three and slander of title as to Elsie and Ronald in count four.
The plaintiffs' amended complaint is in four counts. The first count alleges that as a result of a deed from James and Frances Laverty, the plaintiffs' immediate predecessors in title, they are the record owners of the disputed area. In count two, they allege that even if they are not found to be the record owners, they have acquired title to the parcel through adverse position. The third count alleges trespass and claims that Ronald Matulevich has moved certain boulders onto their property, causing damage. The fourth count alleges that by virtue of Ronald Matulevich's recording of a certain affidavit by the defendant Elsie Matulevich on the Haddam Land Records, those defendants have slandered the plaintiffs' title in violation of General Statutes Sec. 47-33j.
In their Answer, the defendants have either denied the material allegations of the plaintiffs' amended complaint or left the plaintiffs to their proof. They have also asserted three special defenses. In the first of these special defenses, the defendants allege that the deed to James and Frances Laverty did not include the parcel in question, based on the deed dimensions and the location of an iron stake at the northwest corner of the disputed property. The second special defense alleges that the disputed area was not conveyed to the plaintiffs in the deed from Laverty. The third special defense claims that a certain warranty deed on the land records conveys either a life interest and/or title or interest to the defendants through their predecessors in title.
Count I: Record Title
"The construction of a deed . . . presents a question of law" which courts have plenary power to resolve. (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000). "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 that evidence." (Internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780, 687 A.2d 1270 (1997). "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." Marshall v. Soffer, 58 Conn.App. 737, 743, 756 A.2d 284 (2000). "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." (Internal quotation marks omitted.) Id., 744. "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." Id., 743.
The plaintiffs have introduced into evidence more than twenty deeds and other documents on the land records to establish their chain of title, the defendants' chain of title and the chain of title of one Larry Conti, whose property borders the west side of the property in question. Of these, the document of greatest initial significance is Plaintiffs' Exhibit #9, in which the defendant Elsie Matulevich and her mother, Mamie Mrstik, deed to the plaintiffs' immediate predecessors in title, James and Frances Laverty, the property which now belongs to the plaintiff and which either does or does not, depending on the outcome of this case, include the parcel in question.
Plaintiffs' Exhibit #9 describes the property in question as follows.
Starting at a stake located at the northeasterly corner of the herein conveyed premises, which stake is marked at the fence line of property now or formerly of Walter E. and Anna Kingsland, and thence running westerly three hundred twenty-five (325) feet, more or less, to a stake in the fence line to a stake, one hundred thirty-four (134) feet, more or less; thence running easterly to a stake, three hundred twenty-five (325) feet, more or less, along other property of the grantors herein; and thence running northerly back to the point of beginning, one hundred thirty-four (134) feet, more or less.
Said property is bounded on the North by the Middlesex Turnpike, also known as State Road; on the South by other property of the grantors herein; on the East by property now or formerly of Walter and Anna Kingsland; and on the West by property now or formerly of Concettina Conti; or howsoever an accurate survey will disclose.
Being a portion of the premises described in a Deed from Antonie Mrstik to Mamie Mrstik and Elsie Matulevich, dated August 20, 1962 (should be August 17, 1962) and recorded in the Haddam Land Records at Volume 79, Page 370.
On its face, the deed gives James and Frances Laverty, and now, the plaintiffs, a perfect parallelogram of land, with northern and southern borders of precisely 325 feet, and with eastern and western borders of precisely 143 feet. If those dimensions alone are followed, however, the disputed property could not have been included in this deed. The plaintiffs' claim to the property is based primarily on the full description of the northern boundary, which runs 325 feet along Saybrook Road (formerly "Middlesex Turnpike" or the "State Road") but is also said to culminate in a stake on the fence line along the border of property belonging to Conti. There is indeed a fence running from south to north, more or less, along the Conti property but the northwest corner of that fence line is 47.47 feet beyond the 325-foot mark from the northeastern boundary point. Nevertheless, it will be important to recall, for reasons which will shortly become apparent, that the plaintiffs' western boundary is described not only with reference to a stake in a fence line, but also to the property now or formerly belonging to Concettina Conti, a boundary regularly cited in deeds out of the defendants' original chain of title.
Although this deed uses the traditional "more or less" language with reference to these dimensions, there is no claim that "more or less" encompasses a discrepancy of 47.47 feet. See, e.g., Russo v. Corideo, 102 Conn. 663 (1925).
There was, however, no stake or "pin" that could be found near that fence by either the plaintiffs' surveyor, Robert Jackowiak, or the defendants' surveyor, William Bergan. Jackowiak also could not find such a pin or stake at the 325-foot mark along the northern boundary, but Bergan did find such a pin, bent and buried, upon his second examination of the property. Both surveyors found a pin near the northeastern corner, although it was several feet from the actual point indicated on the survey map. This latter discrepancy is not found not to be of significance with regard to trying to determine the eastern boundary of the plaintiffs' land.
The defendants' claim to the parcel is based largely on the contention that they are the descendants of the Mrstiks, the original owners of a much larger property, which encompassed, inter alia, both their own land and that which had been deeded to James and Frances Laverty. They argue that the disputed parcel has never been specifically deeded to Laverty or anyone else. Additionally, as mentioned, the defendants' surveyor found a buried iron pin precisely 325 feet from the northeastern border when he conducted his own survey, and he re-marked the spot with a concrete monument.
Thus, the court is faced with the following dilemma: The deed to the plaintiffs' predecessors in title, and their deed to the plaintiffs, both describe a 134-foot by 325-foot parallelogram, a plot of land with an appealing geometric simplicity which is not found in other parcels in the immediate vicinity and which, using only those dimensions, can not possibly include the parcel in question. If, however, one disregards the 325-foot northern boundary measurement and concentrates instead on the fence along the Contis' boundary line, which the deed references as the western boundary, then the plaintiffs are the owner of the property in question. How shall the dilemma be resolved?
The plaintiffs urge the court to follow the "well settled rule that in cases of contradictory or uncertain property descriptions, known and fixed monuments control over courses and distances. " Tinagero v. Phillips, 18 ConnApp. 521 (1989). See also Russo v. Corideo, 120 Conn. 663, 672, 129 A.2d 849 (1925). Both surveyors confirm that, ceteris paribas, they are to rely on monuments in the field over dimensions in deeds.
The defendants counter that although this is a sound enough principle, in this case here are two contradictory monuments. The defendants acknowledge that if the Conti fence were the only monument at the northwest boundary of the plaintiffs' property, the plaintiffs' case would be strengthened. They point out, however, that there are two monuments referenced for that boundary, the Conti fence and also a stake. Because their surveyor, William Bergan, discovered a stake precisely 325 feet from the northeast corner, and neither he nor the plaintiffs' surveyor found one at the fence line, they argue that the conflict is not between monuments in the field on one hand and dimensions on the other, but rather between two monuments in the field, only one of which is consistent with the dimensions contained in the deed. The reference to the fence, they suggest, is an error.
The defendants also argue that although this particular parcel is not specifically described in any of the deeds in their own chain of title, it does belong to them by process of elimination. The evidence demonstrated that the property described in Plaintiffs' Exhibit #9 and eventually conveyed to the plaintiffs was carved out of a much larger parcel in the defendants' chain of title that included not only land that indisputably now belongs to the plaintiff and land that indisputably now belongs to the defendants, but several other parcels that long ago have been conveyed to other persons. The only reason the disputed area is not specifically described in their chain, they argue, is because it was never made into a separate parcel, and the land that was carved out of their chain of title into the property which was eventually deeded to the plaintiffs simply never included this parcel at all, leaving it as a part of their own original chain of title.
The latter argument, however, is belied in part by Plaintiffs' Exhibit #10 and #11, the deeds from Mimi Mrstik to Elsie Matulevich and from Elsie Matulevich to Elsie and John Matulevich, which includes the following description of the property that now belongs to the defendant, RJMA Realty.
Starting at the southeasterly corner of property this day conveyed to James H. and Frances D. Laverty, and thence running southerly along property now or formerly of Walter E. and Anna Kingsland to the northeast corner of property of Elsie Matulevich and John Matulevich; thence running westerly along property of Elsie Matulevich and John Matulevich to a point; thence running northwesterly to the southwest corner of property this day conveyed to James H. and Frances D. Laverty; and thence running easterly along said property conveyed to James H. and Frances D. Laverty, back to the point of beginning.
Said property is bounded on the North by property this day conveyed to James H. and Frances D. Laverty; on the East by property now or formerly of Walter E. and Anna Kingsland; on the South by property of the Releasee herein, Elsie Matulevich, and John Matulevich; and on the West by property now or formerly of Concettina Conti.
These deeds specifically state that the Matulevich property is bounded on the west by property now or formally of Concettina Conti, and on the north by the property deeded the same day to James and Frances Laverty. In addition, Exhibit #9, the deed to Laverty, describes its western boundary as "property now or formally of Concettina Conti . . ." Thus, if all of these references to the Conti property as bounding both the western portion of the Laverty land and the defendants' property are to be taken as accurate, the disputed property cannot belong to any of the defendants. If the disputed land were not part of the deeds to Laverty and then to Marks, then a part of the northern boundary in Exhibits #10 and #11 would have to have been property deeded to the State of Connecticut in connection with an earlier condemnation proceeding that provided the state with a buffer along the southern side of Saybrook Road, as shown in Plaintiffs' Exhibit #3. Instead, that boundary is described as a line going along the southern side of the plaintiffs' land from the Kingsland property on the east to the Conti land on the west with no deviation to account for the disputed area.
The only possible countervailing argument would have to be that the disputed land was not only not ever deeded to Laverty and thence to Marks, but that it was also never in the chain of title represented by Plaintiffs' Exhibits #10 and #11 and succeeding documents that track the passage of that property down through the death of John Matulevich and eventually the quitclaim to RJMA, but rather that simply remained as an orphaned and disconnected part of the otherwise depleted original Mrstik land, now also belong to Matulevich, and now represented only by the parcel known as 160 Thayer Road, south of the parcel owned by RJMA Realty, Inc. It is difficult to conceive that it would have been the intent of any of the grantors in that chain of title to have divided the land in this fashion without some specific mention of an intent to have the disputed area remain in the Matulevich chain of title.
Further complicating the boundary dispute, of course, is uncertainty over the exact location of the Conti property line abutting both the defendants' land, south of the disputed area, and the disputed area itself. That boundary is described in the Conti chain of title as a line running parallel with the southerly side of a dwelling on the Conti property and 216 feet southerly therefrom. Robert Jackowiak measured those 216 feet from the end of a wraparound porch on the house on the property, while William Bergan used a point at what would have been the end of that house before the porch was added, resulting in a reduction of the size of the Conti property and leaving the Conti fence some twenty feet inside what is now the disputed property, rather than serving as its boundary. The precise date on which the porch was added, alas, was never conclusively established at trial.
It must be noted that none of the properties in question actually has true north, south, east, and west boundaries. It is apparent that what is described as "south" in the Conti chain of title is actually "east" within the meaning of the other deeds that are relevant to this dispute.
If, indeed, there were an iron pipe along the Conti fence in the southwest corner of the disputed area, that discovery would certainly strengthen the plaintiffs' claim. The plaintiff, Donald Marks, testified that he recalled seeing such a pipe, but that about five years ago, he noticed that it had "disappeared." Although he claimed never to have noticed such a pipe at the southwest end of the 325-foot mark, beginning with the southeast stake, such a pipe was found by William Bergan during the course of his survey and was re-marked by him with a concrete monument. There is, therefore, some question about whether someone moved the stake from its original location to the 325-foot mark, and given the timing of both the alleged disappearance and subsequent discovery, this may be more than idle speculation. Idle or not, however, it is only speculation, as there is absolutely no hard evidence of the pin's having been removed and replaced, and the court does not consider this possibility in reaching its ultimate decision.
Adding yet another layer to the dispute, in the 1970s, John Matulevich had allegedly told Donald Marks that the now disputed area had once been a right-of-way. From this conversation, Marks assumed that Matulevich meant that he, Marks, had title to the land, subject only to a right-of-way over it, but Marks further testified that he never saw any member of the Matulevich family use such a right of way and did not give it much thought. Ronald Matulevich, however, testified that he and his father, John Matulevich, did use the disputed area from time to time to get across Saybrook Road in order for them to catch a bus or go fishing. Marks' recollection of the conversation was further to the effect that the right-of-way was for Elsie (or perhaps her sister) only, which might tend to give credence to the theory that it had somehow remained part of the 160 Thayer Road parcel. Marks further recalled that since Elsie was not using the supposed "right of way," John had said to Marks, referring to the disputed area, "I guess that's yours." Ronald Matulevich disputes that his father ever would have said any such thing, but, of course, he was not there at the time.
The evidence showed that John Matulevich was always protective of the north-south boundary line between his property and that of the plaintiffs and was quick to complain when one of the Marks' children strayed across it or even played close to it. Throughout the period of time that the Markses and Matuleviches were neighbors, however, he never registered a complaint about any member of the plaintiffs' family using the disputed area itself.
Among the more intriguing questions raised by this case is the sketch, marked as Defendants' Exhibit A, to which Elsie Matulevich refers in an affidavit, marked as Plaintiffs' Exhibit # 51, as having been given to her by John Matulevich and which was relied upon by the defendants' surveyor, William Bergan, as tipping the balance in this case in favor of the defendants in his conclusion that the disputed area belonged to them. The only direct "testimony" on the authenticity of this sketch is found in Elsie's affidavit, to the effect that it had been given to the Matuleviches' attorney at the time of the closings on both the sale of the property to Laverty and the sale of the property south of Laverty to the Matuleviches in 1965. The parties, however, agreed that Elsie was in no condition to attend court and that her faculties were compromised, and the court had no basis for accepting the affidavit's truth without the plaintiffs' having had an opportunity to cross examine Elsie as to the affidavit's contents. There is no reason to suspect that Elsie's reliance on the sketch in her affidavit was other than in good faith, at least to the extent that one in the mental condition ascribed to her is capable of good faith (or, for that matter, bad faith). The problem is that there is no independent way of determining that this indeed was what John Matulevich had, in 1965, described to his attorney as the property that was to be retained by the Matuleviches, as distinct from that portion that was to be deeded to James and Frances Laverty. As previously mentioned, the deeds executed in 1965 give no indication that the disputed area was in fact reserved in any way for the Matuleviches' use.
The defendants' surveyor, William Bergan, testified that he found himself in a quandary after examining the deeds and conducting his survey of the properties, for reasons that are already apparent from a review of the evidence described to this point. It was, Bergan testified, Defendants' Exhibit A, the sketch referred to by Elsie Matulevich in her affidavit, that resolved the issues in his mind in favor of the defendants. Bound by the rules of evidence and given the doubts it has just expressed about the reliability of the sketch, this court cannot accept Bergan's conclusion.
As a threshold matter, the provenance of Defendants' Exhibit A is very much in doubt. The only evidence regarding the authenticity of this sketch comes from Elsie Matulevich in her affidavit, and under the circumstances, the court is wary of accepting it as the last word on this subject. Unfortunately, it is the only word on this subject and only evidence that might have tipped the balance in favor of the defendants.
Tipping the balance in favor of the plaintiffs, on the other hand, are the following important facts and considerations.
1) the deed to James and Frances Laverty, and in turn to the plaintiffs, contains both dimensions and monuments. All other things being equal, physical monuments should take precedence over dimensions;
2) although there are two possible monuments that might be viewed as describing the northwest corner of the plaintiffs' property, one the iron pin discovered by Bergan and the other the Conti fence, this court believes that the fence should be given more weight than the iron pipe. There is no question that the fence existed prior to 1965 when the deeds critical to the resolution of this case were drafted. There is no evidence of the existence of the iron pin at the 325-foot mark along the northern boundary other than its mention in the Laverty deed and its successors (which, of course, also refer to its location as also being at the fence line), and in the discovery of that pin during Bergan's survey;
Bergan discovered it on the second try. A metal detector used in the general vicinity did not find it the first time, but then, using a more sophisticated measurement, he located the spot at which the pin should have appeared, and, after digging down two or three feet, he actually uncovered it.
3) the deed from Elsie Matulevich to herself and John Matulevich executed on the same day as the deed to James and Frances Laverty, specifically describes the Matulevich property as bounded by Laverty on the north and Conti on the west. Reference to land "now or formerly of Concettina Conti" as a boundary is a constant in deeds out of the defendants' chain of title. Given the mention of the Conti land in the deeds to Laverty and later to Marks, the court concludes that it is the Conti property, and particularly, its fence that was intended to express the western boundary of the plaintiffs' property. If the defendants' theory of the case were correct, the northern boundary of the Matulevich property would have made reference to state highway land as a portion of the northern boundary;
4) the defendants' apparent indifference to the use of the disputed property, up until sometime during the year 2002, further suggests that even the Matuleviches were not making claim to the disputed area;
5) additionally, if one uses the Bergan survey to determine the eastern boundary of the Conti property, the Conti's collection of used or derelict automotive equipment would have been infringing on the defendants' property for years. There was no evidence that the defendants ever protested such an infringement, if infringement it was;
6) as the defendant Elsie Matulevich was one of the grantors in the deed to Laverty, any ambiguity contained within that deed, and thus also within the subsequent deed to the plaintiffs, should be construed against her. Mackie v. Hull, 69 Conn.App. 538, 202, cert. denied, 261 Conn. 916, 917 (2002);
7) finally, the only remaining theory supporting the claim that the disputed area might have belonged the defendants, that it somehow remained an annex of what was left of the 160 Thayer Road parcel, is unsubstantiated by any evidence in the case and rendered a highly unlikely theory by the points already mentioned.
Based on all of these considerations, the court concludes that the plaintiffs have established by the preponderance of the evidence that they are the record owners of the disputed area.
Count Two: Adverse Possession
Although the finding as to count one could render unnecessary this court's resolution of the plaintiffs' claim to the property in count two, the court will nonetheless decide the adverse possession issue raised in this count. Should this case be appealed, and the judgment as to count one overturned, all parties are probably better served by the court's having also determined this alternative theory of recovery.
"[T]o establish title by adverse possession, the 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.) Top of the Town, LLC v. Somers Sportsmen's Ass'n., Inc., 69 Conn.App. 839, 842, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002). A finding of adverse possession is to be made out "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." (Citations omitted; internal quotation marks omitted.) Id., 844. "The doctrine of adverse possession is to be taken strictly." Roche v. Fairfield, 186 Conn. 490, 499, 442 A.2d 911 (1982), quoting, Huntington v. Whaley, 29 Conn. 391, 398 (1860).
The elements necessary to establish adverse possession are well described in our case law. "By ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title, and a denial of the right of the other tenants to participate in the profits. As otherwise stated: An entry . . . on the land of another, is an ouster of the legal possession arising from the title . . . if made under claim and color of right; . . . otherwise it is a mere trespass . . . The intention guides the entry, and fixes its character." (Citations omitted; internal quotation marks omitted.) Lucas v. Crofoot, 95 Conn. 619, 623-24, 112 A. 165 (1921).
Open and visible possession is a use calculated to let others know that the land is owned and occupied by the claimant. The use must be notorious and unconcealed so as to give an owner or any other claimant knowledge and full opportunity to assert his rights. "In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others. Thus, the claimant's possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use." (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, supra, 186 Conn. 502.
The requirement that an adverse claimant possess the property under a "claim of right" does not necessarily mean that he claims that he is the legal title holder, but that he has the intent to disregard the true owner's right to possession. Top of The Town v. Somers Sportsmen's Ass'n, Inc., supra, 69 Conn.App. 843. "It is true, as we have stated above, that it is not essential to the establishment of title by adverse user that a claim of ownership be made; title may be acquired even though the possessor knows that he is occupying wholly without right; all that is necessary to prove is that there was a user as of right, that is, one in disregard of any rights of the holder of the legal title . . . It is, however, true that the intent of the possessor to use the property as his own must be shown. This issue involves an inquiry into his mental condition." (Citations omitted; internal quotation marks omitted.) Horowitz v. F.E. Spencer Co., 132 Conn. 373, 378-79, 44 A.2d 702 (1945). Consequently, a claimant's intent or state of mind regarding his possession of property under a claim of right is relevant and admissible evidence. Id.
"The location and condition of the land must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions." (Citations omitted; internal quotation marks omitted.) Lucas v. Crofoot, supra, 95 Conn. 626. The extent and manner of the plaintiffs' use of the property as outlined in the findings of fact establish by clear and convincing evidence that the plaintiffs and their predecessors in title took acts consistent with ownership, considering the location and the nature of the property. Moreover, "the claimant's possession need not be absolutely exclusive, it need only be a type of possession which would characterize an owner's use." (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, supra, 186 Conn. 502.
The court assumes, for purposes of this analysis only, that record title to the disputed area is actually in the defendant, RJMA Realty, Inc. Based on testimony from the plaintiffs themselves, their children and the brother of Mr. Marks, however, it is apparent that from at least 1975, the plaintiffs utilized the property in question as though it were their own. They did so openly and notoriously, putting in a garden and placing such things as children's play toys on it, and using it for a variety of recreational purposes as well as for a daycare center that Mrs. Marks once ran on the property. The plaintiffs in fact have demonstrated open and notorious use of the property for nearly thirty years, and until the defendants filed a document on the land records and moved boulders onto the property in 2002, the defendants undertook no effort to demonstrate any active interest in or ownership of the land.
Donald Marks, Sylvia Marks and the couple's two children by Sylvia's prior marriage, Calvin Fear and Theresa Cyr, all testified to the effect that they utilized the "disputed area" regularly throughout their lives, going back to around 1975. They had, at various times, a clubhouse and skateboard ramp on the property. They would mow the lawn, some of which extended into the disputed area, in summer, and they would sled on it in winter. There was a garden that also extended into the disputed area, and the Contis, their next door neighbors, had a path leading through the disputed property to the Marks' house.
The Contis had a hay field on the other side of the fence, and they parked their junked vehicles there. If the Bergan survey is to be accepted, at least some portion of those vehicles, although parked on the Conti side of the fence, would actually have been on Matulevich property. Twice a year John Matulevich would sickle his hay, and although he would occasionally yell at Calvin Fear for being slightly over the south boundary, he never made any comment about him or any other member of the plaintiffs' family being on the disputed area, nor was Matulevich himself ever seen on the disputed area. Fear also noted that although he has walked the property many times, he never saw a pin or stake at the 325-foot mark along the northern boundary.
The Contis owned a gas station near the corner of Saybrook Road and Thayer Road Extension.
Theresa Cyr also played with her friends and her brother on the disputed land with regularity. She testified that her family maintained that land right up to the Conti fence. Although they knew John Matulevich, they had little contact with him and he never contested their use of the disputed land, nor did he ever appear on it.
Sylvia Marks indicated that the boundary line was always understood by her to be the series of cedar fence posts which still have little pieces of wire clipped to them, vestiges of the old Conti fence. Her husband trimmed most of the wire away, with the permission of the Contis, so that no one would get caught or cut on it. The boulders that appeared toward the south along the eastern border of the disputed land in 2002 were placed there by someone acting on behalf of Ronald Matulevich. Until 2000, Sylvia Marks never saw any of the defendants attempt to use the disputed property nor did they ever complain about it, nor did they complain that property to the west of the fence posts belonged to them.
Sylvia Marks ran a daycare program on the Marks property from 1977 to 1987 frequently utilizing the disputed area. There was a gym set there, a rope on a tree for swinging and other diversions for children. Although John Matulevich would occasionally request that she be certain that the children stayed on her side of the south boundary, he never made any comment that would affect the disputed land. She had been aware of the existence of a metal pin with an orange tape on it in the southwest corner near the Conti fence. She never saw the pin which is now marked by a concrete monument on the southeastern side of the disputed property, and that pin is not referenced in any deed or map prior to the Bergan survey.
Maurice Marks, Donald's brother, has lived on the property since the late 1970s. He reiterated the testimony of the other family members regarding widespread and open use of the disputed property and the fact that no member of the Matulevich family had ever indicated any interest in the disputed land. He was unaware of the concrete monument at the 325-foot mark on the northern boundary. He knows that his brother, Donald, put a lot of fill along the taking line to the north, and he acknowledged that it was therefore likely that if any pin had been there, it could well have been covered up by several feet of earth. As previously mentioned, however, it is clear that at least some members of the Marks family suspect that the Matulevich family put pins or pipes where they wanted them to be just prior to the Bergan survey. As there is no hard evidence to support this suspicion, the court makes no such finding.
Donald Marks has been involved in the construction field for many years, and has been doing it part-time for the last fifteen years. He actually lived on the property in question for two years before purchasing it from James and Frances Laverty in 1971. He had observed iron pipes or pins at the southeast corner, a couple of pipes at the northeast corner, and one at the southwest corner near the Conti fence. He never saw one at the northwest corner by the Conti fence nor at the 325-foot mark. With regard to the southeast corner, here were apparently a couple of pins and John Matulevich told Donald Marks that somebody had pulled the original pin out and moved it. Marks also testified that John Matulevich would stand and sight up the property line to make sure that Marks had not encroached over the south border. Some of the terraced areas on his property extend into the disputed area. He has parked a tractor there and never had any complaints from Matulevich. Marks also testified that there was wire still on the Conti fence when they moved in. It was rusty, so he took the wire off right after buying the land. Larry Conti, Sr., told him that the fence was the boundary and that he had permission to take the wire off the fence.
Based on the above, and assuming, arguendo, that the issue of record ownership was incorrectly decided by the undersigned, the court finds by clear and convincing evidence, that the plaintiffs have ousted the record owners from possession and kept them out without interaction for more than fifteen years by an open, visible exclusive possession under a claim of right with the intent to use the property as their own. The plaintiffs possess the property under such circumstances as "evince a claim of exclusive right and title under a claim and color of right." The use was open and visible such that there could be no mistake that the plaintiffs intended to assert their claim of right to the disputed area. Although the defendants did not, in so many words, consent to the plaintiffs' use of the disputed area, they never objected to it under circumstances where, if they wanted to object, they certainly could have.
The comment attributed to John Matulevich, "I guess it's yours," sounds more like an acknowledgment of the plaintiff's claim of record ownership than like "consent" to their use of the defendants' land.
A judgment will therefore enter in favor of the plaintiffs with respect to count two of their amended complaint.
Count Three: Trespass
The court has already found that either as a matter of record title or through adverse possession, the plaintiffs are the owners of the disputed area. Trespass is defined in the Restatement of Torts 2nd, Section 158 as an intentional entry on land in the possession of another or remaining on that land. As stated in 75 Am.Jur.2d Trespass at Section 27, one is subject to liability in trespass on real property "if he intentionally enters land in the possession of the other . . . and remains on the land." By entering on to the plaintiffs' property and having boulders placed onto it, the defendant, Ronald Matulevich has clearly trespassed upon the plaintiff's property. There has been no testimony as to the monetary value of the trespass, and the court therefore awards nominal damages in the amount of $500.00. The defendants may satisfy this portion of the judgment by, within 30 days of the date of this judgment, or such other date to which the parties may agree, and upon 72 hours written notice to the plaintiffs, entering upon the property for the sole purpose of removing the boulders without causing any additional harm to the plaintiffs' property.
Count Four: Slander of Title
Plaintiffs' Exhibit #51 is an affidavit by Elsie Matulevich in which she claims, based on a sketch that she said was drafted by her late husband John, that the disputed land is in the Matulevich chain of title. Because the affidavit was filed pursuant to Gen. Stat. § 47-12(a), defendants argue that plaintiffs, who seek damages for slander of title pursuant to General Statutes Sec. 47-33j are not entitled to the relief they seek, as that section is by its own terms limited to filings under sections 47-33f and 47-33g. Because the root of the title under which the defendants claim ownership of the disputed area dates back far more than 40 years before the date of filing, the defendants do not claim to have filed under those sections and therefore contend that the filing is not subject to the remedies contained in 47-33j.
Sec. 47-12a. Affidavit of facts relating to title or interest in real estate. (a) An affidavit, which states facts relating to the matters named in subsection (b) and which may affect the title to or any interest in real estate in this state, and which is made by any person having knowledge of the facts or competent to testify concerning them in open court, may be recorded in the land records of the town in which the real estate is situated. If so recorded, and if the affiant is dead or otherwise not available to testify in court, then the affidavit, or a certified copy of it, is admissible as prima facie evidence of the facts stated in it, so far as those facts affect title to real estate in any action involving the title to that real estate or any interest in it. (b) The affidavits provided for in this section may relate to the following matters: Age, sex, birth, death, capacity, relationship, family history, heirship, names, identity of parties, marital status, possession or adverse possession, adverse use, residence, service in the armed forces, conflicts and ambiguities in description of land in recorded instruments, and the happening of any condition or event which may terminate an estate or interest. (c) Every affidavit provided for in this section shall include a description of the land, title to which may be affected by facts stated in the affidavit, and shall state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit. The town clerk shall index the affidavit in the name of that record owner.
Sec. 47-33j. Notice not to be recorded to slander title. Damages. No person may use the privilege of recording notices under sections 47-33f and 47-33g for the purpose of slandering the title to land. In any action brought for the purpose of quieting title to land, if the court finds that any person has recorded a claim for that purpose only, the court shall award the plaintiff all the costs of the action, including such attorneys fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting the claim shall pay to the plaintiff all damages the plaintiff may have sustained as the result of such notice of claim having been so recorded.
Sec. 47-33f. Notice of claim filed within forty-year period. (a) Any person claiming an interest of any kind in land may preserve and keep effective that interest by recording, during the forty-year period immediately following the effective date of the root of title of the person whose record title would otherwise be marketable, a notice in writing, duly verified by oath, setting forth the nature of the claim. No disability or lack of knowledge of any kind on the part of anyone suspends the running of the forty-year period. Such notice may be recorded by the claimant or by any other person acting on behalf of any claimant who is: (1) Under a disability, (2) unable to assert a claim on his own behalf or (3) one of a class, but whose identity cannot be established or is uncertain at the time of filing such notice of claim for record. (b) If the same record owner of any possessory interest in land has been in possession of that land continuously for a period of forty years or more, during which period no title transaction with respect to the interest appears of record in his chain of title and no notice has been recorded by him or on his behalf as provided in subsection (a) of this section, and the possession continues to the time when marketability is being determined, that period of possession shall be deemed equivalent to the recording of the notice immediately preceding the termination of the forty-year period described in subsection (a) of this section.
Sec. 47-33g. Contents of notice. Recording. Indexing. (a) To be effective and to be entitled to recordation, the notice referred to in section 47-33f shall contain an accurate and full description of all land affected by the notice, which description shall be set forth in particular terms and not by general inclusions; but, if the claim asserted under section 47-33f is founded upon a recorded instrument, the description in the notice may be the same as that contained in the recorded instrument. In addition, each notice shall clearly state the then owner or owners of record of the property involved. (b) Each notice shall be recorded in the land records of the town where the land described therein is located. The notice shall be indexed in the grantors' index under the name or names of the owners of record as listed in the notice and in the grantees' index under the name of the claimant appearing in the notice.
"A cause of action for slander of title consists of the uttering or publication of a false statement derogatory to the plaintiff's title, with malice, causing special damages as a result of diminished value of the plaintiff's property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." Elm Street Builders v. Enterprise Park Condominium, 63 Conn.App. 657, 669, 778 A.2d 237 (2001). While evidence was presented as to the recording of an affidavit derogatory to plaintiffs' title, no malice could be imputed to the person making the affidavit, Elsie Matulevich, based on evidence concerning her state of mind. While the question of whether there was malice on the part of Ronald Matulevich is more difficult to answer, depending on what one makes of the "sketch" upon which the affidavit is based, there has been no evidence of pecuniary damage to the plaintiffs other than the expenses of this litigation, which would have had to be undertaken whether or not the affidavit was filed in order to establish title once and for all.
To satisfy the element of malice, the plaintiff must allege that the defendant made the statement "`with knowledge that [it was] false or with a reckless disregard of the truth or falsity of the facts stated' . . ." Chase Manhattan Bank Mortgage Corp. v. Saraceni, Superior Court, judicial district of Danbury, Docket No. CV 99 0335972 (March 8, 2000, Moraghan, J.) ( 26 Conn. L. Rptr. 577, 579), quoting Moriarty v. Lippe, 162 Conn. 371, 387, 294 A.2d 326 (1972).
"Pecuniary damages must be shown in order to prevail on such a claim." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Association, 63 Conn.App. 657, 670, 778 A.2d 237 (2001), quoting from 50 Am.Jur.2d, Libel and Slander § 554 (1995); see generally D. Wright J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 167. No specific economic loss, other than the attorneys fees engendered in connection with this count, has been shown by the plaintiffs, who do claim that they have sustained emotional distress as a result of the filing of the affidavit on the land records. No Connecticut appellate court has addressed the issue of whether Connecticut follows the rule that damages for emotional distress are not recoverable in an action for slander of title. The Restatement, however, has answered this question in the negative. The same rules on liability that apply to the publication of an injurious falsehood also apply to slander of title. See 3 Restatement (Second), Torts § 624, pp. 342-43 (1977). Liability for the publication of an injurious falsehood is limited to pecuniary loss. Id., § 633, p. 355. "[E]motional distress and resulting harm may not in an action for injurious falsehood be taken into account as an element of damage that the jury may consider in determining the amount recoverable, even when there is such pecuniary loss as to make the publication of the injurious matter actionable." Id., § 633, comment j.
The plaintiffs have cited no authority authorizing recovery of damages for emotional distress in a slander of title action, nor has the court found such authority. Indeed, "[i]t is a well established principle, supported explicitly or implicitly by all of the cases in this annotation, that the injured party can recover only for pecuniary loss resulting from the disparaging words or material, that is, recovery is limited to harm to these interests having pecuniary value. Thus, as a corollary to this principle it is also well established that mental distress or anguish is not within the range of special damages proximately resulting from a slander of title action, a principle supported by some and disputed by none, of the cases in this annotation." 4 A.L.R.4th 532 (1981) and cases cited therein; see also W. Prosser W. Keeton, Torts (5th Ed. 1984) §§ 128 ("[S]uch personal elements of damage as mental distress have been strictly excluded from claims [for slander of title].") See, also, Rite Aid Corporation v. Lake Shore Investors, 298 Md. 611, 471 A.2d 735, 742 (1984); Ward v. Gee, 61 S.W.2d 555-56 (Tex.Civ.App. 1933); Ebersole v. Fields, 181 Ala. 421, 62 So. 73, 75 (1913, writ of error dismissed).
The common-law rule, therefore, is clear. The only remaining question is whether the legislature, by using the phrase "all damages" in §§ 47-33j, intended to modify the common-law rule prohibiting recovery for emotional distress damages in actions for slander of title. "In determining whether a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." (Internal quotation marks omitted.) Cunha v. Colon, 260 Conn. 15, 20, 792 A.2d 832 (2002). The mere use of the phrase "all damages" is insufficient to satisfy this stringent standard. Therefore, the court concludes that there can be no recovery for emotional distress damages under General Statutes §§ 47-33j. It also notes that no real evidence of emotional distress damages has been presented by the plaintiffs.
In Purpora Associates, LLC. v. Keefe, Docket No. 412003, Judicial District of New Haven at New Haven (December 22, 1998, Blue, J.), the court denied a slander of title claim based on C.G.S. §§ 47-33j, noting that there was no evidence that the defendant there used the privilege of recording notices under sections 47-33f and 47-33g for any purpose but rather that the filing in that case, a notice of lis pendens, was filed under the asserted authority of Conn. Gen. Stat. §§ 46b-80(a)(2) (formerly Conn. Gen. Stat. §§ 46-38). Because the fourth count of this amended complaint alleges only this limited statutory slander of title cause of action and not the common law, judgment must enter in favor of the defendants on this count for that reason alone.
The plaintiffs claimed attorney fees pursuant to this statute and submitted, at the time of oral argument, an affidavit itemizing such fees. The defendants objected, claiming that such an affidavit should have been introduced as evidence and not as a part of argument. The court took issue of admissibility under advisement, but now finds that it is unnecessary to reach the issue in light of the ruling in favor of the defendants as to count four.
In summary, the court finds that the plaintiffs have title to the disputed area. The court has found, by a fair preponderance of the evidence, that they are the record owners of this property, but even if the court should be reversed with respect to this finding, the plaintiffs have made out a claim of adverse possession by clear and convincing evidence. The court has found in favor of the plaintiffs as to count three and awarded $500.00 in nominal damages, which may be satisfied by the defendants' arranging for the safe and non-destructive removal of the offending boulders; and the court enters judgment in favor of the defendants as to count four.
Jonathan E. Silbert, Judge