Velsmid v. Nelson

• Citation: 397 A.2d 113,175 Conn. 221
• Court: Connecticut Supreme Court
• Decision Date: 30 May 1978
• Parties: Sheila J. VELSMID et al. v. Jeanne R. NELSON.

Page 113

397 A.2d 113

175 Conn. 221

Sheila J. VELSMID et al. v. Jeanne R. NELSON.

Supreme Court of Connecticut.

Argued Feb. 14, 1978.

Decided May 30, 1978.

Pasquale Young, New Haven, with whom, on the brief, was Patrick B. Dorsey, Meriden, for appellants (plaintiffs).

Robert Farr, West Hartford, for appellee (defendant).

Before LOISELLE, BOGDANSKI, LONGO, HEALEY and PARSKEY, JJ.

LOISELLE, Associate Justice.

The plaintiffs brought this action in trespass, seeking damages and an injunction requiring the defendant to remove her garage from land allegedly belonging to them. The defendant denied the allegation that her garage was located upon the plaintiffs' property and pleaded, by way of special defense, that she had acquired title to the disputed property through adverse possession. The court, without reaching the issue of adverse possession, concluded that the plaintiffs had failed to sustain their burden of proving the location of the disputed boundary line, and that they had failed to prove that the defendant's garage was an encroachment upon their property. From this judgment, the plaintiffs have appealed.

The pertinent facts as found by the court are as follows: The parties are owners of contiguous parcels of land in Westbrook. Both parcels of land were owned at one time by Florence H. Warner. The defendant acquired title to her property in 1963 from Raymond and Anna Mount, while the plaintiffs purchased theirs from Florence Warner in 1966. Since their acquisition of the property, the plaintiffs have paid all taxes on what they believed to be their property, including that portion occupied by the defendant's garage.

The disputed boundary line is the westerly boundary of the plaintiffs' land which is also the easterly boundary of the defendant's land. To establish their claim, the plaintiffs called as a witness Milton I. Ross, Jr., a licensed land surveyor, who had surveyed and prepared a map of the plaintiffs' land. As part of his survey, Ross consulted the deeds of both parties' parcels of land, as well as state highway maps and deeds, and he made field observations, seeking out the location of surveying pins designated in the deeds. The final survey purported to show that the defendant's garage encroached upon the plaintiffs' land.

The defendant did not offer the testimony of a land surveyor or engineer to contradict Ross' opinion. Paul Kaye, a surveyor, was called by the defendant, but he testified that he was unprepared to give testimony relevant to the issue in dispute. Thomas H. Fanning, an attorney primarily engaged in real estate law, testified for the defendant. His title searches of both properties revealed that the disputed boundary line runs continuously in a northwesterly direction, a fact in accord with Ross' survey. Fanning testified, however, that the Ross survey was in error in that (a) it failed to show a break in the disputed boundary line with the line changing its direction slightly, and (b) the frontage reflected on the survey was off by fifteen feet, thus placing the disputed line fifteen feet from where it should have been located. On the basis of Fanning's testimony, the court concluded both that the plaintiffs failed to establish the disputed line and that they failed to prove that the defendant's garage encroached upon their property.

"Title is an essential element in a plaintiff's case, where an injunction is sought to restrain a trespass. McNamara v. Watertown, 100 Conn. 575, 579, 124 A. 244. The burden is on the plaintiff to locate the boundary line. Simmons v. Addis, 141 Conn. 738, 741, 110 A.2d 457." Barrs v. Zukowski, 148 Conn. 158, 164-65, 169 A.2d 23, 26. A plaintiff's claim may fail simply as a result of his or her inability to establish adequately the disputed boundary line. See, e. g., LaFreniere v. Gallinas, 148 Conn. 660, 174 A.2d 46; Barrs v. Zukowski, supra; Ball v. Branford, 142 Conn. 13, 110 A.2d 459.

In the present case, the court concluded that the plaintiffs failed to sustain their burden of proof in establishing the disputed boundary line. Such a negative conclusion is necessarily not based upon the subordinate facts. If it had been, our determination would have been limited to whether those facts supported it, and whether the law was properly applied. See, e. g., Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 510, 280 A.2d 877. The conclusion is, however, reviewable and may be successfully attacked if the record reasonably discloses that the court applied an erroneous principle of law in evaluating the evidence or relied on matters not in evidence or not properly in evidence as a basis for its conclusions. Norwalk v. Trombetta, 137 Conn. 318, 319-20, 77 A.2d 77. The two findings which unquestionably provided the basis for the trial court's conclusion are: "Fanning testified that the Ross survey was in error and that it failed to show a break in the disputed boundary line with the line changing its direction slightly" and "Fanning, in addition, testified that the Ross survey was in error in that the frontage reflected on the survey was off by fifteen feet thus placing the disputed boundary line fifteen feet from where it should have actually been located."

This court has repeatedly stated that it is the function of a finding to state facts and not evidence. Practice Book § 619; Carpenter Co. v. Richardson, 118 Conn. 322, 324, 172 A. 226; C. I. T. Corporation v. Cohen,117 Conn. 159, 161, 167 A. 102; Maltbie, Conn.App.Proc. § 134. A finding that certain testimony was given does not establish the truth of the facts testified to. C.I.T. Corporation v. Cohen, supra; Maltbie, Conn.App.Proc. § 135. Thus the findings, which reveal the content of Fanning's testimony, do not provide adequate factual basis for the court's conclusion. Nonetheless, in the present case, it is evident that the court credited those statements, in essence finding that the survey conducted by the plaintiffs' expert was erroneous in that it (a) failed to show a break in the disputed line and (b) was off by fifteen feet. For the purposes of this opinion, we will consider these as facts so as to determine whether the court applied an erroneous principle of law or relied on matters not in evidence to support the conclusions reached. All exhibits were made part of the finding. Therefore, in addition to the facts found and considered, the exhibits were examined to determine the court's rationale in arriving at its conclusions.

The deed for the defendant's property, which was relied upon by Ross in his survey, demarcates the disputed boundary line as follows: "thence Northerly to Westerly along land of said Warner, a distance of 150 feet, more or less, to a point marked by an iron pipe; thence Northwesterly and still along land of said Warner, a distance of 150 feet, more or less, to a point marked by an iron pipe; then continuing Northwesterly and still along land of Warner, a further distance of 100 feet, more or less, to an iron pipe; then at right angle." The survey map prepared by Ross indicates as the boundary a straight line running northwesterly, through the defendant's garage. Of the three iron pipes designated in the property description, only the first was recovered. The defendant argues that...