Matto v. Dan Beard, Inc.

• Decision Date: 16 August 1988
• Docket Number: No. 5350,5350
• Citation: 546 A.2d 854,15 Conn.App. 458
• Parties: Ralph J. MATTO, Executor (ESTATE OF Betty J. MATTO) v. DAN BEARD, INC.
• Court: Connecticut Court of Appeals

Page 854

546 A.2d 854

15 Conn.App. 458

Ralph J. MATTO, Executor (ESTATE OF Betty J. MATTO) v. DAN BEARD, INC.

No. 5350.

Appellate Court of Connecticut.

Argued Dec. 17, 1987.

Decided Aug. 16, 1988.

Lorraine W. Osborne, with whom was Daniel Shepro, Bridgeport, for appellant (plaintiff).

Edward Maum Sheehy, Bridgeport, for appellees (defendants).

Before SPALLONE, BIELUCH and STOUGHTON, JJ.

BIELUCH, Judge.

The plaintiff ¹ has appealed from the trial court's judgment denying his claims for injunctive relief, for a declaratory judgment and for damages, and from the judgment on the counterclaim finding that the named defendant has adversely possessed a portion of the plaintiff's riparian rights in the Housatonic River. The plaintiff claims that the trial court erred (1) in holding that the defendants established adverse possession of the disputed land, (2) in holding that the plaintiff's action was barred by General Statutes § 52-575, (3) in leaving title to portions of the subject property unresolved, and (4) in concluding that the state is a necessary party to the action. The defendants have presented these alternate grounds for affirming the judgment: (1) "The claims of the plaintiff are barred by the [three-year] statute of limitations set forth in § 52-577"; and (2) "The plaintiff failed in his burden of proof to establish his right to damages and to an injunction." We find error.

On July 25, 1983, the plaintiff's decedent, Betty J. Matto, brought this action against the defendant Dan Beard, Inc., in three counts, seeking to enjoin it from dredging fill and gravel from her property, from trespassing thereon, and from removing boundary markers. In addition, she sought a declaratory judgment as to the ownership of the land abutting the original easterly portion of her property, and monetary damages. Betty J. Matto died on August 9, 1983, and her husband, Ralph J. Matto, executor of her estate, was substituted as plaintiff on August 13, 1984.

Before trial began on November 4, 1985, the court granted the motion of Daniel Nichols Beard that he be named a party defendant and that the plaintiff amend the complaint to show Beard's alleged interest in the disputed property abutting the original easterly boundary of the plaintiff's land. In this motion, Beard alleged (1) that he was the president and the principal and controlling shareholder of the named defendant Dan Beard, Inc., (2) that "he [was] the owner of the property abutting the plaintiff's land referred to in the plaintiff's complaint and claims the same by adverse possession," and (3) that he had an interest in the controversy adverse to the plaintiff or was a necessary party for a complete determination of the questions involved in the action. The court also granted the motion of Ralph J. Matto to become an additional party plaintiff as the sole devisee of the real estate owned by his deceased wife, Betty J. Matto, the original plaintiff. The pleadings were amended to reflect the court's orders.

In the first count of the plaintiff's amended complaint, the following allegations were made. Betty J. Matto acquired a certain parcel of land on the easterly side of River Road in Shelton, bounded on the east by the Housatonic River, 130 feet, more or less, by warranty deed of Building Coordinators, Inc., executed on its behalf by the plaintiff, Ralph J. Matto, its president, on April 2, 1980. Prior to this acquisition of the property, and continuing to the present, the corporate defendant has maintained a dredging operation in the Housatonic River. Because of these dredging operations, the plaintiff's property bounded on the Housatonic River has been eroded, undermined and washed away; gravel and fill have been taken, and continue to be taken, from the property; he is unable to utilize and develop the property; and land which was formerly under water and adjacent to the property is now located at or above sea level. As a result, the plaintiff has lost the reasonable use of riparian property adjacent to navigable waters and his right, as riparian owner, of reasonable access to the Housatonic River. The defendant Dan Beard, Inc., has refused the requests of the plaintiff that it cease and desist from its dredging operations and that it remove its machinery and equipment from the land which now abuts the easterly portion of his property, some or all of which land the individual defendant Daniel Nichols Beard now claims by adverse possession.

The second count alleged that as a result of these dredging activities, land formerly under water was now at or near sea level and should belong to the plaintiff together with riparian rights. In the third count, the plaintiff alleges that the corporate defendant had caused the removal of boundary stakes which had been set after a survey of his property.

The defendant ² filed an answer denying the plaintiff's allegations and pleading three special defenses. The first and second special defenses alleged that the plaintiff's claims were barred by the statute of limitations and by laches. The third special defense alleged that, by virtue of the adverse user and possession of the premises by "the defendant and his predecessor in title" for more than fifteen years prior to the commencement of this action, "the defendant and his predecessor have thereby acquired and the defendant now has sole and exclusive title to the premises as well as the corresponding riparian rights therein." (Emphasis added.) In a counterclaim, it was alleged that "by reason of adverse possession on its part and the part of its predecessor in title" for more than fifteen years prior to the commencement of this action, "the defendant now has sole and exclusive title to the premises and corresponding riparian rights therein." In this counterclaim, the defendant sought a decree that "it has acquired title to said premises." (Emphasis added.)

After a two day trial, the court issued a lengthy memorandum of decision. The following facts were found. On October 31, 1979, the plaintiff's corporation, Building Coordinators, Inc., acquired by warranty deeds of Alice R. Bardugone and Louis J. Francini two contiguous parcels of land, the first of which is the property described in the plaintiff's complaint. They were conveyed by warranty deed to the plaintiff's decedent on April 2, 1980. When the premises were later surveyed in July 1980, the plaintiff learned that the easterly boundary was entirely on land, and not at the river's edge, and that the operations and machinery of the defendant Dan Beard, Inc., were on a portion of his land. The surveyor's stakes marking the easterly boundary had been run over by the corporate defendant's trucks and subsequently disappeared.

The plaintiff took immediate action to protect the decedent's rights, first by sending a letter on July 1, 1980, to the defendant Beard notifying the defendants of the claims and demanding that they cease operations on the property, and later by speaking to him. Failing in these attempts, the decedent's attorney, on June 16, 1981, formalized these demands by certified letter to the defendant Beard. When these oral and written demands were not met, the attorney sent a final letter on October 15, 1981, again without result. This suit followed on July 25, 1983.

The trial court further found: "[T]he plaintiff's property's easterly boundary fronted on the Housatonic River in 1965, except for forty feet of roadway northerly of the Beard property's northerly boundary and that roadway being on land below the high-water mark of the Housatonic River. The forty feet had been built by Beard dredging the river and placing the fill in the river to the east of the plaintiff's easterly boundary." (Emphasis added.) It was not "a roadway in the ordinary sense--its use was limited to passage by Beard's equipment only, and for the location of Beard's machinery used for dredging from time to time." (Emphasis added.) In 1970, the roadway extended the full length of 130 feet of the Matto property's easterly boundary and "extended easterly from the plaintiff's easterly boundary into the river and was below the high-water mark ... to Two Mile Island, an island located in the Housatonic River and owned by the defendants." (Emphasis added.) The court further found that "[T]he Housatonic River is a tidal river and, therefore, has high and low-water marks."

Additionally, the court found: "In 1975 the roadway continued to exist along the full length of the plaintiff's easterly boundary, as did the causeway extending easterly to Two Mile Island. In 1975 on the island causeway were two land locked sump ponds, the second one having been created in 1972 by the defendant company and, as a result of both the roadway and causeway described, the plaintiff's land no longer fronted on the river. In 1980, the same situation continued to exist as in 1975 and 1970.... Beard ... built the roadway along the easterly boundary of the plaintiff's property and on the river in the course of his dredging operations. The causeway, from the plaintiff's easterly boundary to Two Mile Island, was commenced in 1974 and finished in 1975. The defendant's derrick was located on the roadway easterly of the premises in 1975 and 1980, but not in 1970. Daniel Beard owns personally the adjoining land southerly of the Matto premises and the Company owns Two Mile Island. Since 1946, Beard has stockpiled gravel on the Matto property temporarily and moved equipment across that property 'off and on.' " (Emphasis added.)

The court also found that "the defendant's dredging operations have eroded and undermined a portion of the plaintiff's premises at the southeasterly corner, however, the exact dimensions of that portion have not been delineated for the court. The defendant has removed from that portion of the premises an undetermined amount of gravel and fill." (Emphasis added.) There was no evidence "to show when the fill and gravel was removed so...