Brander v. Stoddard, AC 38254

• Decision Date: 06 June 2017
• Docket Number: AC 38254
• Citation: 173 Conn.App. 730,164 A.3d 889
• Parties: Bert BRANDER v. Trisha STODDARD, Temporary Administrator (Estate of Lily B. Frey), et al.
• Court: Connecticut Court of Appeals

173 Conn.App. 730

164 A.3d 889

Bert BRANDER

v.Trisha STODDARD, Temporary Administrator (Estate of Lily B. Frey), et al.

AC 38254

Appellate Court of Connecticut.

Argued April 18, 2017

Officially released June 6, 2017

Patrick E. Power, for the appellant (plaintiff).

John L. Laudati, with whom, on the brief, were P. Jo Anne Burgh and Casey Walker, pro hac vice, for the appellees (defendants).

Keller, Prescott and Beach, Js.

PER CURIAM.

In this action seeking to quiet title to a parcel of property located along the Farmington River in New Hartford, the plaintiff, Bert Brander, appeals from the judgment of the trial court finding in favor of the defendants, Trisha Stoddard, in her capacity as the temporary administrator for the estate of Lily B. Frey, and the Farmington River Watershed Association, Inc., on both counts of the operative complaint.¹ The plaintiff, who began using the disputed parcel in 1984 to graze sheep and grow hay, alleged that he acquired title through adverse possession or, in the alternative, had a prescriptive easement for its use. In response, the defendants argued that, for certain periods of time, the plaintiff's use of the property had been with the permission or implied consent of the owners. The matter was tried to the court, Marano, J. , over two days in February, 2015. On August 6, 2015, the court issued a memorandum of decision finding in favor of the defendants.

The plaintiff claims on appeal that the court improperly concluded that his use of the disputed property from 1984 to 1995 was not under a claim of right but, rather, was with the permission of the record owners at the time, Henry Frey and Lily Frey. The plaintiff also claims that the court improperly concluded that his use of the property from 2004 to 2006 was not under a claim of right, but was with the permission of the record owner, Lily Frey.

Having examined the record on appeal and having considered the briefs and the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. Further, because the court thoroughly addressed in its memorandum of decision all of the arguments raised by the parties on appeal, we adopt that well reasoned decision as a proper statement of both the facts and the applicable law at issue. See Brander v. Stoddard , 173 Conn.App. at 732, 164 A.3d 889 (2015) (appendix). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway , 297 Conn. 317, 321, 2 A.3d 857 (2010).

The judgment is affirmed.

APPENDIX

Superior Court, Judicial District of Litchfield

BERT BRANDER

v.

TRISHA STODDARD, TEMPORARY ADMINISTRATOR (ESTATE OF LILY B. FREY), ET AL.^*

File No. CV-13-6008351-S

Memorandum filed August 6, 2015

Proceedings

Memorandum of decision in action to quiet title.

Judgment for the defendants

Patrick E. Power , for the plaintiff.

John L. Laudati , for the defendants.

Casey Walker , pro hac vice, for the named defendant et al.

Opinion

MARANO, J.

The plaintiff, Bert Brander, brings this cause of action against the defendants, Trisha Stoddard, in her capacities as Connecticut temporary administrator of the estate of Lily Frey and Florida personal representative of the estate of Lily Frey, and the Farmington River Watershed Association, Inc. In his two count complaint, filed with the court on March 25, 2013, the plaintiff seeks to quiet title to property located at 65 Farmington River Turnpike, New Hartford, Connecticut (disputed property), based on claims of adverse possession and prescriptive easement. The defendants filed an answer on June 21, 2013, and an amended answer and special defenses on February 13, 2015, alleging that the plaintiff's use of the property was with the permission of the owners. The matter was tried to the court on February 10 and 11, 2015. The parties filed posttrial briefs on May 4, 2015.

PARTIES' POSITIONS

Plaintiff's Position

The plaintiff argues that he acquired the entire disputed property through adverse possession pursuant to General Statutes § 52-575. In support of this argument, the plaintiff alleges that from 1984 to the present he has used the disputed property to graze his sheep and to grow hay. While conceding that the titleholders to the property erected a fence between the plaintiff's property and the disputed property in 1993, he alleges that within a year he removed the fence and resumed use of the property for grazing sheep and growing hay. He further argues that any other use of the land by the titleholders was insufficient to overcome his possession of the property. He also argues that any initial permission that was granted by the titleholders to the plaintiff to use the disputed property for grazing and haying was revoked in 1993 when they erected a fence and he continued to use the property for grazing and haying from 1993 to the present, a period in excess of the fifteen years mandated by § 52–575.

In the alternative, the plaintiff argues that he has acquired a prescriptive easement over the disputed property to graze sheep and grow hay. He argues that the only difference in proof between a claim of adverse possession and a claim of prescriptive easement is that with a prescriptive easement possession need not be exclusive. Therefore, he argues that, for the same reasons that he has satisfied the elements of adverse possession, if the court were to find that his use of the property was not exclusive, he would still satisfy the elements of a prescriptive easement. He further argues that such a prescriptive easement would be an easement appurtenant because use of the disputed property for grazing and haying benefits the dominant estate, the adjacent Brander property, and not the plaintiff personally. Specifically, he argues that he would derive no personal benefit from an easement over the disputed property to graze sheep and grow hay if he were not raising sheep on his adjacent property.

Defendants' Position

The defendants argue that the plaintiff has failed to make out a prima facie case of adverse possession. Specifically, they argue that the plaintiff has failed to satisfy the fifteen year time period or proven that he acted under a claim of right because as late as 1998 he represented to the town of New Hartford that Henry and Lily Frey (Freys) were the titleholders to the disputed property. They further argue that he has not proven that he acted under a claim of right and absent permission because from 1984 to 1993 he used the disputed property with the belief that the Freys would leave the disputed property to him in their will and a belief in a future claim to the property is not a present claim of right. They further argue that the plaintiff has not proven that he had exclusive possession of the property because the Freys took steps to build a single-family residence on the property, the plaintiff knew of the Freys' actions, and the plaintiff never objected on the ground that he had exclusive possession of the property. They also argue that on several occasions the plaintiff delivered lamb meat to Lily Frey as "rent" for the disputed property, which is inconsistent with a claim of right to the property. They argue that the Freys gave the plaintiff permission to graze his sheep and grow hay on the disputed property.

In regard to the plaintiff's claim of a prescriptive easement, the defendants first argue that any claim for such a prescriptive easement should be considered an easement in gross because the benefit runs to the plaintiff personally and not the Brander property. The defendants also argue that the plaintiff has failed to make a prima facie case of prescriptive easement because the plaintiff acknowledged that the Freys were the owners of the property in 1998 to the town of New Hartford and such acknowledgment contradicts any alleged claim of right on the part of the plaintiff. They further argue that any use of the disputed property by the plaintiff was with the permission of the Freys. Therefore, they argue that the plaintiff cannot succeed in his claim of prescriptive easement.

FINDINGS OF FACT

As the trier of fact, the court must resolve issues of credibility. See State v. Nowell , 262 Conn. 686, 695, 817 A.2d 76 (2003) ; Lacic v. Tomas , 78 Conn.App. 406, 409–10, 829 A.2d 1, cert. denied, 266 Conn. 922, 835 A.2d 472 (2003). "The determination of a witness' credibility is the special function of the trial court." (Internal quotation marks omitted.) State v. Knight , 266 Conn. 658, 674, 835 A.2d 47 (2003). "[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony." (Internal quotation marks omitted.) Hoffer v. Swan Lake Assn., Inc ., 66 Conn.App. 858, 861, 786 A.2d 436 (2001). The court finds the following facts and credits the following evidence.

In 1967, Henry Frey purchased property in New Hartford, Connecticut, commonly known as the Ryan Farm. Plaintiff's exhibit 12. In 1981, Henry Frey transferred the property to himself and to Lily Frey¹ as joint tenants with right of survivorship. Plaintiff's exhibit 2. In 1984, the Freys sold a portion of the property, located at 24 Farmington River Turnpike, New Hartford, Connecticut (Brander property), to the plaintiff. Plaintiff's exhibit 4. The plaintiff subsequently transferred the Brander property to Branderville Ltd., a Connecticut company of which the plaintiff owns a majority interest. Plaintiff's exhibit 25. The Freys retained the disputed property, which is adjacent to the Brander property, as well as adjacent property located across the Farmington River Turnpike from the Brander and disputed properties on which the Freys resided and conducted farming activities. At the time of the sale of the Brander property to the plaintiff, the defendants represented to the plaintiff that if he purchased the Brander property at that time, then they would leave the disputed property to him in their wills.

In 1984, the plaintiff...