Smith v. Padawer, No. CV-04-0104450S (CT 8/16/2005)
| Decision Date | 16 August 2005 |
| Docket Number | No. CV-04-0104450S,CV-04-0104450S |
| Court | Connecticut Supreme Court |
| Parties | Frank F. Smith v. Bernard Padawer Opinion No.: 89939 |
In his One-Count Complaint, the plaintiff has alleged that on various occasions and in various ways, the defendant has trespassed upon his property, which property is shown on a Class A-2 survey that is on file in the Town of Haddam Clerk's Office. (Plaintiff's Exhibit #4.) He seeks damages and a number of orders.
In his Answer, the defendant denies any Trespass, and in a Two-Count Counterclaim alleges that he, not the plaintiff, is the record title owner of the northerly 40 feet of the premises shown on the above-mentioned survey. The defendant also alleges, in the alternative, that he has acquired title to the 40 feet in question by adverse possession. The defendant seeks a judgment determining the rights of the parties to the disputed 40 feet.
Haying reviewed the testimony elicited during the trial, including the exhibits, and having evaluated the credibility of the various witnesses, the court finds the following facts.
The plaintiff's property, which is vacant land, is abutted on the north by the defendant's land, which includes the defendant's house. Therefore, the plaintiff's north boundary is the defendant's south boundary; the dispute is over the location of that boundary line.
Prior to 1897, Russell Manufacturing Company ("Russell"), owned the lands now owned by the plaintiff and the defendant. By quitclaim deed dated December 11, 1897, Russell conveyed what is now the Smith property to the Trustees of the Eureka Council Number 43 of the Order of United American Mechanics. Said deed was recorded in Volume 44, Page 464 of the Land Records (Plaintiff's Ex. 6). This deed described the property being conveyed as follows:
One certain piece of land situated in said Village of Higganum in said Town of Haddam bounded and described as follows: Northerly by other land of said Releasor [Russell), Easterly by highway, Southerly by Highway formerly known as the Middlesex Turnpike, Westerly by land of heirs of Daniel and Caleb Brainard; said premises are further described as follows: Commencing at the South East corner of said premises running Northerly One hundred and Seventy-five (175) feet more or less to an iron stake, thence Westerly parallel with the said Middlesex Turnpike so-called to land of said heirs of Daniel and Caleb Brainard, thence Southerly along said land of said heirs of Daniel and Caleb Brainard One hundred and Seventy-five (175) feet more or less to said Middlesex Turnpike, thence along said Turnpike to place of beginning.
Plaintiff's Ex. 7 was a deed by which the Trustees of Eureka Council No. 42 (sic) Order of United American Mechanics conveyed the land described in Plaintiff's Ex. 6 to Albert L. Brainerd on April 19, 1909. The deed was recorded on April 30, 1909, in Volume 50, Page 164. In the signature area, the Trustees were correctly stated to be of Eureka Council No. 43. The land was described by identifying the four abutting property owners, without giving the length of the four boundary lines, and by stating: "For further description reference is made to Haddam Land Records Vol. 44 Page 464," the root deed (Plaintiff's Ex. 6). In the case of Plaintiff's Exhibit 7, the complete legal description of the property was readily available in the recorded root deed, which was incorporated by reference.
Plaintiff's Ex. 8 was the Probate Certificate of Distribution issued after the death of Albert L. Brainerd, who died intestate. The decedent's real estate was "set to" Floyd A. Brainerd, the decedent's son. As in the prior deed, Plaintiff's Ex. 7, the land was described by identifying the four abutters and with specific reference "to deed recorded in Haddam Land Records, Volume 44, Page 464," the root deed. This Probate Certificate is recorded in Vol. 67, Page 429, of the Haddam Land Records.
Plaintiff's Ex. 10 was a quitclaim deed from the heirs (wife and two daughters) of Floyd A. Brainerd, who had died intestate on August 11, 1965, still owning the property that he had inherited from his father, to Anthony Giurintano. This deed contained the following legal description:
Beginning at a point, which point marks the intersection of Route 9 and a highway now or formerly known as Cross Street; THENCE running Northerly along said Cross Street a distance of One hundred thirty-five (135') feet, more or less, to a point; THENCE running Westerly a distance of One hundred (100') feet, more or less, along property now or formerly of Calliari (Calliari) to a point; THENCE running Southerly a distance of one hundred thirty (130') feet, more or less, to Route 9; THENCE running in an Easterly direction along said Route 9 a distance of One hundred eight (108') feet, more or less, to the point or place of beginning. Said piece or parcel of land is designated as parcel #14-1 on "Map #14A—insert # 1 of the Haddam Tax Assessor."
Being all and the same premises as recorded in the Haddam Land Records, Volume 67, Page 429. The purpose of this deed is to convey any and all interest which we, the Grantors have in and to the herein described premises, as the wife and only children of the said FLOYD A. BRAINERD, who died intestate on August 11, 1965 as a resident of Plymouth Road, Providence, Rhode Island.
This deed was dated December 13, 1967, and was recorded in Volume 101, Page 156. Plaintiff's Ex. 10 contained an error, in that the Easterly and Westerly boundary lines were misstated (135 feet instead of 175 feet and 130 feet instead of 175 feet). The deed also made reference to "Assessor's Map #14A—Insert # 1" the 1960 version of which is included with later assessor's maps as Defendant's Ex. A, which showed the same 135 feet and 130 feet East and West boundaries. The "Being all and the same premises . . ." sentence, and the following sentence, which stated that the deed was intended to convey all of the decedent's land, eliminated the uncertainty created by the incorrect length of the boundary lines and the incorrect assessor's map. This deed effectively conveyed all of the grantors' interest in the property to Mr. Giurintano.
Immediately after purchasing the Brainerd property, (which consisted of the land on the westerly side of Calliari Place and a second piece of land abutting the easterly side of Calliari Place and the westerly side of Parsonage Road), Mr. Giurintano conveyed an undivided half interest in both to his wife, Rosa (Plaintiff's Ex. 11). The deed was dated January 26, 1968, and was recorded in Volume 101, Page 157.
By quitclaim deed dated October 25, 1988, the Giurintanos conveyed the subject property on the westerly side of Calliari Place to Frank F. Smith (Plaintiff's Ex. 1). The person who drafted the deed used the same legal description as contained in the Brainerds' deed to Mr. Giurintano, (Plaintiff's Ex. 10) stating that the easterly and westerly boundaries were 135 feet and 130 feet, respectively, and again referencing the incorrect assessor's map. Unlike Plaintiff's Ex. 10, Plaintiff's Ex. 1 did not contain a prior deed reference or the additional language that clarified exactly what was being conveyed, with the result that the Giurintanos continued to own the northerly forty (40) feet of the property that they were intending to convey to Mr. Smith. In an attempt to resolve the problem, they executed a Corrective Quitclaim Deed on March 8, 2005, which deed was recorded in the Haddam Land Records on April 5, 2005, in Volume 288, Page 226 (Plaintiff's Ex. 5), which purported to convey the additional forty (40) feet to the plaintiff.
Mr. Padawer's root deed was a warranty deed from Russell Manufacturing Company to Luther P. Perry dated May 18, 1920, a conveyance of nine (9) tracts of land that occurred twenty-three years after Russell had conveyed the Smith land to the Trustees of Eureka Council (Plaintiff's Ex. 6). This deed was recorded in Volume 54, Page 74 of the Land Records. By quitclaim deed dated July 3, 1920, Mr. Perry conveyed the same nine (9) tracts of land to The Frissell Fabric Company, which deed was recorded in Volume 56, Page 38. The Frissell Fabric Company conveyed one of those nine tracts, with three houses thereon, to Pietro Todeschini by quitclaim deed dated September 23, 1924. (Plaintiff's Ex. 14). This deed was recorded in Volume 56, Page 195. The conveyed property was described as being bounded on the South by the Middlesex Turnpike, which was erroneous in view of Russell's prior conveyance of the Smith land to the Trustees of Eureka Council.
By quitclaim deed dated July 11, 1925, Pietro Todeschini conveyed the following described property to Joel E. Spencer:
[A] certain piece or parcel of land . . . with dwelling house thereon standing, containing one-quarter acre, more or less, and bounded and described as follows, viz: northerly by Highway leading to the Connecticut Valley R.R. Station, Easterly by land of Grantor; Southerly by Middlesex Turnpike; and Westerly by Ponsett Brook, so-called.
Being a part of the premises conveyed to me from The Frissell Fabric Company by deed dated September 23rd, 1924, and recorded in Haddam Land Records, Vol. 56, Pg. 195.
Said deed was recorded in Volume 56, Page 231 (Plaintiff's Ex. 15).
By quitclaim deed dated November 22, 1926, Joel E. Spencer conveyed his property to Luigi Calliari, which deed was recorded in Volume 56, Page 334 (Plaintiff's Ex. 16). Apparently Mr. Spencer had discovered that his deed from Mr. Todeschini misstated his southerly boundary line as the Middlesex Turnpike, as the deed that Mr. Spencer signed corrected that error. While the property being conveyed was stated to be "one quarter acre, more or less," the same as set forth in his deed from Todeschini, the southerly abutter...
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