Lisiewski v. Seidel

• Decision Date: 30 May 2006
• Docket Number: No. 24901.,24901.
• Citation: 95 Conn.App. 696,899 A.2d 59
• Court: Connecticut Court of Appeals
• Parties: Chester LISIEWSKI v. John A. SEIDEL et al.

899 A.2d 59

95 Conn.App. 696

Chester LISIEWSKI v. John A. SEIDEL et al.

No. 24901.

Appellate Court of Connecticut.

Argued February 21, 2006.

Decided May 30, 2006.

COPYRIGHT MATERIAL OMITTED

Ernest J. Cotnoir, Putnam, for the appellants (defendants).

Beth A. Steele, Norwich, for the appellee (plaintiff).

SCHALLER, DiPENTIMA and McLACHLAN, Js.

SCHALLER, J.

This case comes before us for a second time. The defendants, John A. Seidel and Fred R. Seidel, appeal from the judgment of the trial court rendered in favor of the plaintiff, Chester Lisiewski. On appeal, the defendants claim that the court improperly found that the plaintiff proved his claim of adverse possession. We reverse in part and affirm in part the judgment of the trial court.

In Lisiewski v. Seidel, 72 Conn.App. 861, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002), we set forth the following relevant facts and procedural history. "The plaintiff . . . owns land to the east of the disputed property and brought this action when the defendants erected a metal gate obstructing his passage over [a] driveway. . . .

"The parcel of land subject to the title dispute is a narrow, L-shaped parcel on the northerly and westerly borders of the plaintiff's land (disputed area). . . . Even if one accepts the construction of deeds advanced by the plaintiff, almost all of the gravel driveway is located on the undisputed land of the defendants except for a narrow gore within the disputed area which expands from a sliver to a width of five feet on the street line. . . .

"In the early 1950s, the plaintiff and the defendants' grandfather, Reinhold Seidel, worked together as foremen in the same factory. At that time, the plaintiff and Seidel negotiated the land conveyance at issue in this appeal. Seidel owned real property in the town of Sprague, which he decided to sell to the plaintiff. In 1952, prior to conveyance, the plaintiff began building a house on the land. During construction, vehicles eventually wore a path near the western boundary of the parcel that Reinhold Seidel would eventually convey to the plaintiff. It was this path that would later evolve into the gravel driveway. . . . On April 28, 1954, Seidel conveyed the land to the plaintiff's wife by warranty deed, which was recorded in the Sprague land records in volume 16, pages 410 and 411.

"When the plaintiff moved in, the land immediately to the east of the gravel driveway was `practically' a `jungle,' due to heavy foliage. The plaintiff soon cleared and cultivated the area. In late 1954, he planted a row of [h]emlocks in that area, roughly parallel to the gravel driveway. In the late 1950s, he built a stone wall in the disputed area. One length of that stone wall lay several feet to the east of the gravel driveway.

"Meanwhile, Seidel retained land to the west, including the gravel driveway. This land eventually passed to the defendants. Upon Seidel's death, the land first passed from his estate to Martha Emma Seidel, his wife. In 1962, Martha Emma Seidel conveyed that land by in the Sprague land records in volume 15, page 413, to her son, Fred Seidel, and his wife Olga. Finally, Fred Seidel and Olga Seidel conveyed the land to their two sons, [the defendants] by warranty deed dated and recorded on June 20, 1997, on pages 689 and 690 of volume 53 of the Sprague land records.

"Before the defendants acquired the property to the west of what their grandfather had conveyed to the plaintiff, the plaintiff had used the gravel driveway for more than forty years as a means of egress and ingress to and from his property. In 1981, the plaintiff built a garage behind and to the north of his house, connecting with the gravel driveway. Prior to that date, he had simply parked vehicles outside in the same location. The defendants' predecessors in title, namely their father and grandfather, never challenged the plaintiff's use of the gravel driveway." Id., at 862-64, 806 A.2d 1121.

Shortly after obtaining the property from their parents, the defendants erected a metal gate at the end of the gravel driveway, preventing the plaintiff's passage. Id., at 864, 806 A.2d 1121. By way of an amended revised complaint dated June 12, 2000, the plaintiff claimed, inter alia, that he had obtained title to the disputed area by adverse possession and by the language contained in the deeds.¹ The trial court concluded that the plaintiff had "established through the testimony of his experts and the deed that he has . . . title to the disputed [area]." The court did not address the plaintiff's adverse possession claim as a result of its conclusion regarding the construction of the deed and rendered judgment accordingly.

On appeal, we reversed "the judgment of the court with respect to its holding that the `plaintiff has established through the testimony of his expert and through his deed that he has . . . title to the disputed [area] . . . and that the defendants have no title, interest or estate therein.'" Id., at 871, 806 A.2d 1121. We then stated: "The court did not decide the plaintiff's claim that he had established title by adverse possession to the disputed area because it found that he had title by deed, a decision we this day reverse. We therefore remand the case for the court's consideration of whether the plaintiff has established title by adverse possession to any area within the disputed area." Id.

Following our remand, the defendants, on October 31, 2002, moved to supplement the evidentiary record, and the court denied their motion on December 12, 2002. The court issued its second memorandum of decision on November 14, 2003, in which it determined that the plaintiff had obtained the disputed area by adverse possession. This appeal followed. Additional facts will be set forth as necessary.²

The defendants claim that the court improperly found that the plaintiff proved that he was entitled to the disputed area. Specifically, they argue that the court's prior statement that the parties shared dominion over the disputed area precluded a finding of adverse possession. The defendants also argue that the plaintiff failed to establish that he had adversely possessed the entire disputed area. We address each argument in turn.

As a preliminary matter, we identify the legal principles applicable to this case. "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. . . .

"A finding of adverse possession is to be made out by clear and positive proof. . . . [C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The burden of proof is on the party claiming adverse possession. . . .

"Despite that exacting standard, our scope of review is limited. Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion." (Citation omitted; internal quotation marks omitted.) Provenzano v. Provenzano, 88 Conn.App. 217, 221-22, 870 A.2d 1085 (2005); see also General Statutes § 52-575; Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462-63, 338 A.2d 470 (1973); 16 R. Powell, Real Property (2005) § 91.13. With these principles in mind, we address the defendants' specific arguments.

I

The defendants first contend that the court's statement in its first memorandum of decision that the parties shared dominion over the disputed property precluded a finding of adverse possession in favor of the plaintiff. We agree that the defendants have stated correctly that shared dominion defeats a claim of adverse possession. See Roche v. Fairfield, supra, 186 Conn. at 498, 442 A.2d 911; Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980); Matto v. Dan Beard, Inc., 15 Conn.App. 458, 476, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988). If dominion is shared, then the exclusivity element of adverse possession is absent. We conclude, however, that the defendants' argument mischaracterizes the court's statement in its first decision.

The defendants filed a counterclaim and sought to obtain title to the disputed area by adverse possession. In its first memorandum of decision, the court indicated that the testimony regarding the use of the disputed area, more specifically, the land located to the west of the stone wall and hemlock bushes and east of the gravel road, was "in great dispute . . . ." The court determined that the testimony of the plaintiff's witnesses was more credible than that of those offered by the defendants. The court stated: "The evidence was clear that although the defendants claimed adverse possession, they did not show that they had exclusive use of the land, but merely shared dominion over the property with the plaintiff. The defendants did not dispute that [the plaintiff and his family] regularly walked on the disputed area to maintain their bushes and, as part of the disputed area falls on the east side of the wall, [the defendants] admitted they never maintained this area or considered it to be their own. Because [the defendants] failed to keep the [plaintiff and his family] out of the...