McCullough v. Waterfront Park Ass'n, Inc.

• Decision Date: 15 October 1993
• Docket Number: No. 11420,11420
• Citation: 32 Conn.App. 746,630 A.2d 1372
• Court: Connecticut Court of Appeals
• Parties: Linda McCULLOUGH v. WATERFRONT PARK ASSOCIATION, INC., et al.

Page 1372

630 A.2d 1372

32 Conn.App. 746

Linda McCULLOUGH v. WATERFRONT PARK ASSOCIATION, INC., et al.

No. 11420.

Appellate Court of Connecticut.

Argued April 29, 1993.

Decided Aug. 31, 1993.

Certification Denied Oct. 15, 1993.

Raymond T. DeMeo, Hartford, for the appellant (plaintiff).

Barry D. Guliano, Manchester, with whom, on the brief, were Gregory F. Demanche, Mary Ann Puglise and James T. Scully, Hartford, for the appellees (defendants).

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

DUPONT, Chief Judge.

This appeal arises from an action brought by the plaintiff, Linda McCullough, against the defendants, Waterfront Park Association, Inc. (Association), and several individual members of the Association, seeking damages and injunctive relief because of an alleged trespass on property to which the plaintiff claims ownership. The Association filed two alternative special defenses, one claiming that it had acquired title by adverse possession, and the other claiming a prescriptive easement. The trial court rendered judgment in favor of the defendants, concluding that the plaintiff did not have title to the land, and, alternatively, that the Association had acquired a prescriptive easement in it. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the plaintiff does not have record title to the land in dispute, (2) concluded, as an alternative holding, that the Association has a prescriptive easement to the same piece of land, and (3) declined to consider the plaintiff's claim that her littoral rights were violated by the defendants' use of the land in dispute. We reverse, in part, the judgment of the trial court.

The facts as found by the trial court are as follows. On June 1, 1989, the plaintiff purchased property located at 35 Shore Drive in Coventry. Her house overlooks a lake and that portion of the lake that lies in front of her house is a cove. A spit of land projects into the cove and is commonly referred to as "the peninsula." In the spring of 1990, the Association placed five docks off the western side of the peninsula in front of the plaintiff's property and ten boats belonging to members were docking there by July, 1990. Use of the docks was reserved by the Association for its members who did not own property directly on the lake and who had signed up for dockage. During the summer of 1990, the plaintiff protested to the Association about the placement of the docks and the use of the western side of the peninsula for docking boats. In the spring of 1991, the plaintiff commissioned an A-2 survey of her property. This survey indicated that the plaintiff owned the western two-thirds of the peninsula. The plaintiff makes no claim to the one-third of the peninsula that lies to the east of her property. After receiving the survey, the plaintiff met with representatives of the Association and reasserted her claim to the western two-thirds of the peninsula. The Association disputed the results of the plaintiff's survey and refused to remove the docks. Consequently, the plaintiff placed "No Trespassing" signs on the peninsula and notified the Association by letter that her littoral rights were being violated by the placement of the docks off the peninsula. The signs were removed by unknown parties.

The docks were removed after the summer of 1990, and in April, 1991, four of the five docks were reinstalled. A fifth dock was relocated on the eastern side of the peninsula. The plaintiff again promptly notified the Association of her objection to the docks. The Association did not remove the docks and indicated to the plaintiff that it planned to install the docks during each subsequent boating season.

In May, 1991, the plaintiff brought this action in four counts against the defendants alleging trespass, and seeking injunctive relief and monetary damages. After a trial to the court, the court issued a lengthy and thoughtful memorandum of decision holding that the plaintiff had not met her burden of proof as to each of the elements of trespass and found for the defendants on all counts. As an alternative holding, the court held that the defendants had acquired a right to use the land by prescriptive easement.

An action for damages for trespass is a possessory action; Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973); for which title is only incidentally relevant. Staff v. Hawkins, 135 Conn. 316, 317, 64 A.2d 176 (1949). When an injunction is sought to restrain a trespass, however, title is an essential element in a plaintiff's case. Wadsworth Realty Co. v. Sundberg, supra; Barrs v. Zukowski, 148 Conn. 158, 165, 169 A.2d 23 (1961). Consequently, where both damages for trespass and an injunction are sought, both title to and possession of the disputed area must be proved; Wadsworth Realty Co. v. Sundberg, supra; More v. Urbano, 151 Conn. 381, 383, 198 A.2d 211 (1964); and the burden of proving them is on the plaintiff. More v. Urbano, supra. Possession may be actual or constructive. Wadsworth Realty Co. v. Sundberg, supra. Actual possession means actual and exclusive possession of the disputed area. Radigan v. Hughes, 86 Conn. 536, 545, 86 A. 220 (1913). If a plaintiff relies on constructive possession, and has alleged both title and possession in a complaint, a plaintiff must prove, in addition to title, the absence of actual and exclusive possession in another. Wadsworth Realty Co. v. Sundberg, supra; More v. Urbano, supra.

The court found that the plaintiff did not have exclusive possession of the peninsula and the plaintiff has not challenged this finding. Consequently, the plaintiff relies on the theory of constructive possession. The plaintiff claims that the trial court improperly found that she did not have record title to that portion of the peninsula that lies in front of her property. The plaintiff argues that the court, in making this finding, misinterpreted the language of the plaintiff's deed when determining where the northern boundary line of her property was located. The plaintiff's deed describes her northern boundary as "the shore." The plaintiff contends that the term "shore" means the land between the ordinary high water and low water mark. Consequently, the plaintiff claims that her property extends to the high water mark; which would include the peninsula. Because the distance from the southeastern corner of the plaintiff's property to the end of the peninsula is 342.5 feet and the length of the eastern boundary given in the deeds for this parcel from the southeastern corner is 160 feet, the court determined that "shore" meant a line on the bank of the lake short of the high water mark, and concluded that the peninsula was not part of the plaintiff's property.

When determining a boundary line in a deed, if the description in the deed is clear and unambiguous, it must be given effect. In such a case, the inquiry is not the intent of the parties but the intent that is expressed in the deed. Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 (1971). The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). "On appeal the scope of review of such a question is plenary and does not require the customary deference to the trial court's factual inferences." (Internal quotation marks omitted.) Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992); Ezikovich v. Linden, 30 Conn.App. 1, 618 A.2d 570 (1993).

"[I]t is the function of this court to determine whether the decision of the trial court is clearly erroneous.... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision...." (Citation omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 494-95, 442 A.2d 911 (1982), quoting Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The property along the southern side of the lake was developed by James H. Fitzgerald in 1919. In 1931, Fitzgerald conveyed by warranty deed to Alvin Nelson the property that is now the plaintiff's property. The description of the plaintiff's property in her warranty deed is identical to the description of the property in the deed from Fitzgerald to Nelson. In the deeds, the eastern boundary is described as running "to the shore of Lake Wangumbaug" ¹ and the northern boundary is described as running "by said shore." The term "shore" has been defined in Connecticut law as "the land between ordinary high and low-water mark, the land over which the daily tides ebb and flow...." (Internal quotation marks omitted.) Mihalczo v. Woodmont, 175 Conn. 535, 539, 400 A.2d 270 (1978); see also Short Beach Cottage Owners Assn. v. Stratford, 154 Conn. 194, 200, 224 A.2d 532 (1966) (shore is land below the high water mark, beach is above the high water mark); Matto v. Dan Beard, Inc., 15 Conn.App. 458, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988) (the land between high and low-water marks called the foreshore). ² Because the plaintiff's deed clearly indicates that her boundary line runs to the shore and by the shore, we conclude, as a matter of law, that the intent expressed in the deeds describing this property was that the northern boundary line is the high water mark.

The court used the difference in the distances between the high water mark of the peninsula as it now exists and the length of the eastern boundary in the deed descriptions to support its conclusion that the peninsula was not part of the plaintiff's property because it determined that the peninsula existed in 1931 in substantially the same size...