Fischer v. Shook, No. CV03-0090405 S (CT 4/6/2005)
| Decision Date | 06 April 2005 |
| Docket Number | No. CV03-0090405 S,CV03-0090405 S |
| Court | Connecticut Supreme Court |
| Parties | Christopher Fischer et al. v. Terry L. Shook et al. Opinion No.: 88262 |
Plaintiffs have brought this action to quiet title relative to a small triangular piece of land pursuant to Connecticut General Statute Section 47-31. Additionally, plaintiffs have claimed that the defendants trespassed upon their property, and, removed survey markers in violation of Connecticut General Statute Section 47-34a. Defendants had originally filed a counterclaim alleging in multiple counts, ownership of the disputed parcel through adverse possession, acquisition of a prescriptive easement over the parcel, and, trespass by the plaintiffs thereon. At the commencement of trial, defendants withdrew the counts relative to adverse possession and prescriptive easement, leaving only their claim for trespass by the plaintiffs.
The property in dispute is located in Warren, Connecticut along Brick School Road in an area comprising the southwest corner of the plaintiffs' property and the northwest corner of the defendants' property. The perimeter of the disputed area begins at the end of an existing stone wall which runs east-west along the mutual border of the properties (shown on Plaintiffs' Exhibits 7 and 8). From that point there are remains of both a wire fence and a buried base of a stone wall which run in a straight line westerly 87.33 feet to another stone wall that stands parallel to Brick School Road. From there, the line of the disputed area travels northerly approximately seven (7) or eight (8) feet to a large tree which has the remains of an old wire fence embedded in it, and then proceeds southeasterly back to the point of beginning. The area is, in effect, a right triangle with its base running parallel to Brick School Road.
The plaintiffs claim title to the property through a Warranty Deed recorded July 10, 1996 in Volume 47, Page 236 of the Warren Land Records. (Plaintiffs' Exhibit 1.) The defendants claim title to the property through a Warranty Deed recorded March 30, 2001 in Volume 53, Page 867 of the Warren Land Records. (Plaintiffs' Exhibit 2.) Both deeds described the boundaries of the properties as running along stone walls and/or wire fences, and, set out the linear footage of many of the boundaries with the designation "more or less."
Over the years, the plaintiffs placed dirt containing broken glass, bits of metal and other debris into this area to make it more level with the surrounding area. The defendants have allowed horses that they board and/or own to roam through the area. There is no existing fence in the disputed area and the horses have on a number of occasions come on to the (undisputed portion of) plaintiffs' property eating vegetation and leaving indentations and ruts in the plaintiffs' lawn. The area also borders, or is near, separate paths of ingress and egress to both the defendants' and the plaintiffs' property.
At the time each of the parties purchased their respective properties, they were aware of a map dated December 28, 1987 prepared by Linwood R. Gee, a licensed land surveyor.1 The map showed the boundaries of the defendants' property and had been prepared for the defendants' predecessors in title, the Alamar Corporation. (Plaintiffs' Exhibit 8.) After the dispute between the parties arose as to the actual location of the boundary between their properties, the defendants hired a licensed land surveyor, Richard Adams, to provide an opinion as to the location of their boundary. Although no map was prepared, Mr. Adams disagreed with the location of the boundary as set out in the map prepared by Mr. Gee. In 2002, the defendants asked Mr. Gee to again review the boundary line of the property. His findings as to the boundary were unchanged from his conclusions as set forth on his December 1987 map.
Subsequently, the plaintiff hired Robert L. Hock, a licensed land surveyor to prepare a map for the purpose of identifying the boundary. Mr. Hock prepared a map dated June 2002 that showed the boundary of the property between the plaintiffs and the defendants to be consistent with that shown on the map prepared by Mr. Gee. The defendants, however, continued to dispute the location of the boundary. They claimed there was physical evidence that it ran not on a straight line extension westerly from the end of the old stone wall, but instead, on a somewhat diagonal line from the end of the old stone wall along a line of trees to the (last) large tree that contained pieces of an old wire fence. The defendants argued that this was in effect an evidentiary monument to the boundary line as the tree had grown around the fence over a lengthy period of years.
The relief afforded by a quiet title action is a full determination of the rights of the parties in and to the land in dispute. Lake Garda Improvement Association v. Battistoni et al., 155 Conn. 287, 293 (1967); DeVita v. Esposito, 13 Conn.App. 101, 110-11 (1987), cert. denied, 207 Conn. 807 (1988). "Where the testimony of the witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court's duty to accept that testimony or evidence which appears more credible." Stohlts v. Gilkinson, 87 Conn.App. 634, 640 (2005), quoting Wheeler v. Foster, 44 Conn.App. 331, 334 (1997). As to both the complaint and counterclaim, the plaintiffs and defendants each have the burden of proving their claim by a fair preponderance of the evidence. Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 837 n. 7, cert. denied, 262 Conn. 937 (2003). More specifically, in actions involving boundary line disputes, the burden of proof is on the plaintiffs to prove the boundary is where they claim it to be. Steinman v. Maier, 179 Conn. 574, 575 (1980). As to the claim of damages by trespass, each party has the further burden of establishing that the other party proximately caused such damages. Hearl v. Waterbury YMCA, 187 Conn. 1 (1982). In the event of a trespass, an injury to real property entitles the injured party to damages, nominal or otherwise. Expressway Associates, II v. Friendly Ice Cream Corporation of Connecticut, 218 Conn. 747, 749 (1991). However, in order to establish a trespass, a possessory interest of a party must be proven whether it be actual or constructive. Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 461 (1973); Keonnicke v. Maiorano, 43 Conn.App. 1, 30-31 (1996).
The plaintiff presented the testimony of both Mr. Gee and Mr. Hock as expert witnesses. Mr. Gee noted that at the time of his preparation of the 1987 map, there was a wire fence that ran a distance of 87.34 feet from the end of the existing stone wall to the stone wall that ran parallel to Brick School Road. This line marked the abutting boundary between the northwestern corner of the defendants' property and the southwestern corner of the plaintiffs' property. Although the fence was not there in 2002, it was his opinion that the fence was intended to represent where the missing portion of the stone wall used to be. He further noted that in investigating the matter originally in 1987, and then again at the request of the defendants in 2002, the boundaries of the properties at that location were referenced in the deeds as being the intersection of the stone walls. Hence, he concluded that the distance running westerly 87.34 feet from the end of the existing stone wall had previously had a stone wall in that location and that the wall (and later on the wire fence) had intended to be the location of the boundary.
Upon being presented with the evidence of different pieces of a wire fence in the large tree approximately seven (7) to eight (8) feet north of where he believed the property line to be, Mr. Gee stated that evidence was not relevant to the boundary line issue. While such fence if extended from the tree to the end of the existing stone wall could be looked upon as a "line of occupation" and could be considered a variable in determining the location of the boundary, it was not the best evidence of the boundary line. Defendants contended that there was a line of trees, starting with the large tree, running in a relatively straight line toward the end of the existing stone wall and that this was evidence of the intent to establish the boundary line. In Mr. Gee's opinion, the stone wall represented the best evidence of establishing such a line.
Mr. Hock testified that his investigation of the property both visually and electronically found evidence of a prior standing stone wall and wire fence that ran 87.33 feet from the end of the existing stone wall to the stone wall that ran parallel to Brick School Road. This was shown on his June 2002 map with the designation "wire fence remains." (Plaintiffs' Exhibit 7.) This location was consistent with the references contained within the deeds to the properties as the line being along a stone wall and wire fence. The most important part of his investigation was his discovery of rocks dug approximately 18 inches into the ground that would have served as a base to support a stone wall. The location of these base rocks was a logical extension of the existing wall for purposes of...
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