Koennicke v. Maiorano

• Decision Date: 10 September 1996
• Docket Number: No. 14167,14167
• Citation: Koennicke v. Maiorano, 682 A.2d 1046, 43 Conn.App. 1 (Conn. App. 1996)
• Court: Connecticut Court of Appeals
• Parties: W. William KOENNICKE v. Curt A. MAIORANO.

Page 1046

682 A.2d 1046

43 Conn.App. 1

W. William KOENNICKE v. Curt A. MAIORANO.

No. 14167.

Appellate Court of Connecticut.

Argued Feb. 28, 1996.

Decided Sept. 10, 1996.

Martin B. Burke, Rockville, for appellant-appellee (defendant).

Howard B. Schiller, Willimantic, for appellee-appellant (plaintiff).

Before DUPONT, C.J., and LANDAU and HEALEY, JJ.

HEALEY, Judge.

The plaintiff, W. William Koennicke, instituted this action in a complaint in four counts against the defendant, Curt A. Maiorano, seeking to quiet title to a disputed portion of land that runs along the boundary between his property and that of the defendant in the town of Hampton. Generally speaking, their properties adjoin each other. The plaintiff also seeks damages for the cutting of trees and for trespass and title by adverse possession. ¹

The first count, which seeks to quiet title, alleges that the defendant claims an estate or interest by deed in "an undefined portion" of the land of the plaintiff on which the defendant has knowingly entered without the plaintiff's permission, has cut down trees without permission, has caused earth moving equipment to be brought in, has caused disturbance to the earth thereon, has removed signs prohibiting trespass on the plaintiff's land and has stored cut wood on that land. The second count incorporates a number of the same allegations and further alleges that the defendant's actions constitute a cutting of trees on the land of another in violation of General Statutes § 52-560. ² The third count incorporates the same allegations as the second count and sets out two additional allegations. They are that, on diverse dates, the plaintiff or his agents personally communicated to the defendant orders not to enter the plaintiff's property or to leave that property and that the defendant's conduct constituted criminal trespass in violation of General Statutes § 53a-107. ³

The case was referred to an attorney trial referee who heard the evidence ⁴ and submitted her report comprising her findings of fact and conclusions of law. At the same time, she also filed her memorandum of decision, ⁵ which included case law citations as well as her recommendations for judgment. In it, she found the issues for the plaintiff on the first, second and third counts and recommended judgment for the plaintiff on those three counts, and she found the issues for the defendant on the fourth count and recommended judgment for the defendant on that count. The defendant objected ⁶ to the acceptance of the report of the attorney trial referee. The trial court overruled the objections of the defendant and adopted the referee's memorandum of decision except for the award of common law punitive damages in the third count. It rendered judgment in favor of the plaintiff on the first count, establishing title to the disputed premises by deed; for the plaintiff on the second count for $12,000; and for the plaintiff on the third count, to the effect that a trespass had been committed by the defendant. This appeal followed. The plaintiff cross appealed on matters involving damages, which we consider later in this opinion.

On this appeal, the defendant claims that the trial court improperly concluded (1) that, as a matter of law, the division line between the properties of the plaintiff and defendant was a stone wall, (2) that, as a matter of fact, a stone wall constituted the boundary line between the two properties involved when that finding was not supported by the evidence, (3) that the defendant removed stones that the plaintiff had placed to mark the boundary line between them when inconsistently finding that the stone wall was the boundary between the parties, (4) that, as a matter of law, the defendant wrongfully cut trees on the land of the plaintiff in violation of § 52-560 and (5) that the defendant committed a criminal trespass in violation of General Statutes § 53a-107. We discuss the first three claims together and the fourth and fifth together. We affirm the judgment of the trial court except as to the third count of the complaint.

The plaintiff filed a cross appeal in which he claims that the trial court improperly refused to award heightened damages, refused to award attorney's fees based on its own knowledge of the complexity of the proceedings before it and failed to order a separate hearing regarding attorney's fees if the award of heightened damages was properly rejected. The issues of the cross appeal are interrelated, and relate closely to the resolution of the appeal itself.

The report of the attorney trial referee discloses that she found, inter alia, the following facts and made certain conclusions of law. The plaintiff ⁷ and the defendant ⁸ own adjoining parcels of land in the town of Hampton formerly owned by the defendant's mother, Elizabeth Koennicke Maiorano (Elizabeth). The plaintiff is Elizabeth's brother. Elizabeth had obtained title to the entire property in 1943 by a warranty deed from Richard Koennicke. That warranty deed included the recital that the entire property "contains about two hundred and twenty five acres, be the same more or less." Thereafter, in 1953, because she was unable to repay Richard Koennicke fully for the property, Elizabeth reconveyed the south portion of it to him in satisfaction of that debt. The warranty deed reconveying this portion to her grantor, Richard Koennicke, included the recital "roughly estimated as containing 115 acres of land, be it the same, more or less." The attorney trial referee found that the statement of acreage in this deed was merely a matter of description and was not intended to assure a particular quantity of land. In addition, the 1953 warranty deed described the lands reconveyed to Richard Koennicke by reference to stone walls and adjoining property owners. The division line between the properties was a stone wall dividing two fields. The larger field lay to the north of the stone wall and was retained by Elizabeth.

The plaintiff acquired title to the land owned by Richard Koennicke by a warranty deed dated February 6, 1960. That deed repeated the description that was set out in the 1953 warranty deed from Elizabeth to Richard Koennicke.

The defendant acquired his present interest in this parcel, which was the balance of the land retained by Elizabeth, after her 1953 deed to Richard Koennicke, by virtue of a November 13, 1963 quitclaim deed from Elizabeth to herself and the defendant with rights of survivorship. The description set out in the 1963 quitclaim deed was essentially the original description used in the 1953 warranty deed from Richard Koennicke to Elizabeth, including the "containing 225 acres more or less" language. This 1963 quitclaim deed contained the following recital: "Excepting and excluding from the above a parcel conveyed by [Elizabeth] to Richard Koennicke by Warranty Deed, dated May 13, 1953 ... and which parcel contains 115 acres, more or less."

The disputed area that is the subject of this action is a strip of approximately 300 feet extending from the stone wall south and includes the smaller of the two fields. The description in the 1953 warranty deed from Elizabeth to Richard Koennicke is ambiguous because of the fact that it contains some references ⁹ to monuments that no longer exist. The attorney trial referee found that it was the intention of Elizabeth to convey, by that 1953 deed, all the land to the south of the stone wall between the two fields to Richard Koennicke. Prior to the 1953 deed to her uncle, Richard Koennicke, Elizabeth had identified the stone wall between the fields as the boundary to Kurt A. Koennicke, her brother, and she had indicated to him that if he did not buy it, she was going to reconvey it to Richard Koennicke to satisfy her debt to him. Prior to his purchase of his parcel from Richard Koennicke, the plaintiff walked the boundary line with Richard, who indicated that he was conveying to the plaintiff the land to the south of the stone walls dividing the two fields. After the plaintiff's purchase of this land, Elizabeth, when conferring with the plaintiff to issue deer permits and again when the plaintiff allowed a neighboring farmer to plant the field, acknowledged the stone wall dividing the larger field and smaller field as the boundary line between her property and that of the plaintiff. Since acquiring title, the plaintiff has planted rye in the smaller field to the south of the stone wall and has also cut wood to the south of the stone wall. Elizabeth did not utilize the land south of the stone wall after its purchase by the plaintiff, digging test pits only on the north portion in search of gravel to sell. There were no disputes between the plaintiff and Elizabeth or the defendant prior to Elizabeth's death.

The dispute concerning the location of the boundary line did not start until approximately 1985, when the defendant moved to the farm on his property. In approximately 1979, the plaintiff had loaned the defendant $7500, which was not repaid. The plaintiff, in 1986 or 1987, asked the defendant to repay that $7500 loan. The disputes over the plaintiff's ownership coincided with these requests for repayment.

In June, 1980, the defendant entered into a contract with the Rossi corporation to log his land, which was estimated at that time to be 100 acres. The contract called for logging only to the north of the stone wall between the fields. At the time of his contract with Rossi, the defendant placed his land in forestry classification, referencing his total acreage as 100 acres. In addition, he has paid taxes on 100 acres at least since that time. With the stone wall between the two fields as the boundary, the defendant's land is about 100 acres.

The defendant began entering the disputed portion, that is the land south of the stone wall, to cut trees and to store junk vehicles in 1986 or 1987. Sometime within the last five years, the defendant made a road from the...