Helming v. Norris, No. CV00 02715778 (CT 8/22/2005)

• Decision Date: 22 August 2005
• Docket Number: No. CV00 02715778,CV00 02715778
• Court: Connecticut Supreme Court
• Parties: Carlton E. Helming v. Kelly A. Norris et al. Opinion No.: 89997

Page 1

Unpublished Opinion

Carlton E. Helming v. Kelly A. Norris et al. Opinion No.: 89997

No. CV00 02715778

Superior Court of Connecticut

Judicial District of New Haven at Meriden

August 22, 2005

MEMORANDUM OF DECISION

RICHARD E. ARNOLD, JUDGE.

The plaintiff has filed this action requesting that the court quiet title to a portion of a parcel of real estate located at 313 Sir Walter Drive, Cheshire, Connecticut. The plaintiff has alleged that he is the absolute owner and possessor of said real estate by virtue of a Warranty Deed dated September 25, 1998, which was recorded on the Cheshire Land Records on September 29, 1998. The plaintiff further alleges that the defendants Kelly A. Norris and John J. Brucato claim estates or interests in portions of 313 Sir Walter Drive, Cheshire, Connecticut that are adverse to the plaintiff's title to said real estate. More particularly, the plaintiff alleges that during September 1999, the defendants or their agents entered upon said land without the plaintiff's permission and caused holes to be dug, trees to be felled and trimmed and soil to be excavated. The plaintiff claims to be damaged by the actions of the defendants. The plaintiff requests that the court determine the respective rights of the parties in or to the subject real estate and to settle the title issues. In addition the plaintiff claims money damages.

The defendants by way of special defenses allege that the plaintiff's claims to all or a portion of the disputed real estate are without right and are extinguished and barred by General Statute §47-21.¹ The defendants also claim that they have acquired sole and exclusive title to the disputed portion of the subject premises pursuant to General Statutes §52-575.² A third special defense claims the plaintiff is estopped from claiming title or damages, and a fourth special defense alleges negligence by the plaintiff for neglecting to properly review the status of the parcel's title before he accepted a Warranty Deed. The plaintiff has denied these special defenses. In addition to their special defenses, the defendants have also filed a two-count counterclaim alleging title via adverse possession and requesting that the court quiet title pursuant to General Statutes §47-31.

The trial to the court commenced on October 28, 2004, and was continued to December 21, 2004 and January 19, 2005, when the taking of evidence was completed. The trial briefs and proposed findings of fact by the parties were submitted by March 24, 2005. Prior to this date, the defendants had filed a request for leave to file an amended counterclaim dated March 8, 2005, adding a count alleging a prescriptive easement. After objection by the plaintiff and oral arguments by the parties, the court denied the defendants' request to amend on April 4, 2005.

II

THE CLAIMS OF THE PARTIES

The Plaintiff Helming asserts record title to all of that real property described as Lot #7 of the Scottland Estates subdivision. He additionally claims that he has been damaged when the defendants without permission of the plaintiff entered onto his land and "dug holes, trimmed and cut down trees and excavated soil." The Defendants claim that, as to a roughly triangular-shaped parcel along the Plaintiff's northeasterly boundary line, they and their predecessors in title have conducted themselves in such a way as to establish title to said property in themselves by adverse possession. Further, the Defendants claim that the Plaintiff's predecessor(s) in title had been ousted of possession of said portion of real property at the time of the attempted conveyances to other persons in the chain of title, thus voiding in part the deeds purporting to convey same. The defendants also request that the court quiet title to the disputed portion of land and request damages and an order permanently enjoining the plaintiff and his successors and assigns any rights to the disputed parcel.

III

CHAIN OF TITLE

In a case such as this, the Plaintiff is required to prevail on the strength of his own title and not on the weakness of any claim of title that may be made by the Defendants to the same land. Koennicke v. Maiorano, 43 Conn.App. 1, 9, 682 A.2d 1046 (1996). "A mere paper chain of title does not establish ownership in one unless his possession or that of his predecessors in title is shown, though title satisfactorily established may draw with it possession in the absence of any evidence to the contrary." Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150 (1960). The prevailing party must prove his title or interest in the disputed property by a fair preponderance of the evidence. General Statutes §47-31³; Remington Investments, Inc. v. National Properties, Inc., 49 Conn.App. 789, 716 A.2d 141 (1998).

Section 47-31 requires a determination of record title before the issue of adverse possession is reached. "Such a construction is based on the fact that the statute lists things which fall into the same category, that of written documentation of title. If the words sources of title were broad enough to include facts comprising adverse possession, the words determine the construction of the same would make no sense. It is the written indicia of title to which the statute refers." (Internal quotation marks omitted) Clark v. Drska, 1 Conn.App. 481, 488, 473 A.2d 325 (1984) "Where a party pursuant to General Statutes 47-31 seeks to quiet title, the trial court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title." Id. at 488-89; Cahill v. Cahill, 75 Conn. 522, 526, 54 A. 201 (1903). "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." Id. at 489; Roche v. Fairfield, 186 Conn. 490, 497, 442 A.2d 911 (1982); Merwin v. Morris, 71 Conn. 555, 571-72, 42 A. 855 (1899).

In support of the plaintiff's title claim, the plaintiff presented testimony from an expert witness, Attorney Norman Fishbein. Based upon his examination of the land records for the Town of Cheshire, he rendered an opinion that there is an established, unbroken chain of title in the plaintiff to the real property described herein, and as recited in the recorded warranty deed transferring title to the plaintiff.

Attorney Fishbein specifically testified that a deed from Erardi to Kent (Ex. 10) and all subsequent deeds in the plaintiff Helming's chain of title (Ex. 11, 12, 13, 14, 15, and 16) describe a 41.36' jog in the westerly boundary of the land being conveyed. He further testified that survey maps referred to in these deeds (Ex. 1, 2 and 3) clearly demonstrate the jog and track the descriptions. Attorney Fishbein also testified that the drawn composite of the survey maps (Ex. 32) fairly and accurately represent the subject boundary line and clearly show that the plaintiff has record title to the disputed triangular-shaped parcel. The court finds the testimony of Attorney Fishbein to be credible and convincing.

Attorney Fishbein also testified regarding the defendants' chain of title to their property at 144 Talmadge Road, Cheshire, Connecticut. The defendants acquired title to this property by way of a warranty deed dated June 24, 1999 from Gregg A. Bisson and Maurisa L. Bisson. In addition to the warranty deed from the Bissons (Ex. 30), the defendants received a quitclaim deed (Ex. 31) from the Bissons, also dated June 24, 1999. The difference in the two deeds were regarding the southwest and southeast boundary descriptions.

The warranty deed described the southwest boundary as having "200 feet, more or less." The southeast boundary was described as having "348 feet more or less." The quitclaim deed described the southwest boundary as having "243.63 feet, more or less," while the southeast boundary carried the language "by land now or formerly of Erardi."

Attorney Fishbein testified that while he was able to establish an unbroken chain of title to 200 feet of the defendants' southwest boundary, he was not able to establish an unbroken chain of title to the approximately 43 feet which he testified belonged to the plaintiff Helming. Fishbein described a pattern in the defendants' chain of title whereby a combination of warranty and quitclaim deeds were employed to convey the property to the defendants and their predecessors in title. This pattern began in 1973 and continued through six different conveyances.⁴ The effect was to warrant 200 feet of the defendants' southwest boundary but not the 43.63 feet of the same boundary. Fishbein concluded that this was evidence of doubt in the minds of those who searched the title records and conveyed the 43.63 feet only by way of quitclaim deeds. This doubt was created by a conveyance from Erardi to Troia⁵ and a subsequent correction of that conveyance⁶ after Erardi apparently realized he had already conveyed the 43 feet nearly two years earlier to Kent.⁷ Once again, the court finds Fishbein's opinion to be credible and convincing.

The plaintiff offered prima facie proof in this action to quiet title that he has fee simple title to the disputed parcel of real property. Having done so, the burden of overcoming this evidence and showing the contrary rests upon the defendants. See Feuer v. Henderson, 181 Conn. 454, 435 A.2d 1011 (1980). However, the defendants offered no expert testimony concerning the chain of title. They have failed to refute Attorney Fishbein's opinion that record title to the disputed triangular-shaped parcel was owned by the plaintiff.

The court finds that the plaintiff has established by a fair preponderance of the evidence that he has an unbroken chain of title to the real property described in exhibit 16, a warranty deed dated September 25, 1998 from Richard S. Allen, M.D. and Shelley H. Allen. Said warranty deed conveying title to the...