Stohlts v. Gilkinson, 24618.

• Court: Appellate Court of Connecticut
• Citation: 867 A.2d 860,87 Conn.App. 634
• Decision Date: 01 March 2005
• Docket Number: No. 24618.,24618.
• Parties: Harold STOHLTS et al. v. James F. GILKINSON et al.

867 A.2d 860
87 Conn.App. 634

Harold STOHLTS et al.
v.
James F. GILKINSON et al

No. 24618.

Appellate Court of Connecticut.

Argued September 22, 2004.

Decided March 1, 2005.

867 A.2d 864

Scott W. Jezek, Moodus and Averum J. Sprecher, Middletown, for the appellants (defendants)

Owen P. Eagan, West Hartford, for the appellees (plaintiffs).

LAVERY, C.J., and SCHALLER and DUPONT, Js.

LAVERY, C.J.

The defendants, James F. Gilkinson, individually and as trustee of the Gilkinson Family Trust, and Robert Dickinson, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs, Harold Stohlts and Robin Stohlts. On appeal, the defendants claim that the court improperly (1) found title of a certain parcel of land in favor of the plaintiffs, (2) found that the general public has a right to use Old Turnpike Road, (3) found the defendants liable for intentional infliction of emotional distress and awarded damages for that tort, including punitive damages and (4) placed restrictions on the use of the defendants' property and of Old Turnpike Road by granting relief to the plaintiffs. We affirm the judgment of the trial court.

This case arises out of a dispute between two abutting property owners. The plaintiffs asserted the following claims at trial: Trespass, obstruction of right-of-way, action to settle title of land and negligent infliction of emotional distress.¹ The court found for the plaintiffs on the claims of obstruction of right-of-way, action to settle title of land and negligent infliction of emotional distress. It awarded compensatory and punitive damages and injunctive relief, and quieted title in favor of the plaintiffs.

The court found the following facts. In 1999, the plaintiffs purchased real property

867 A.2d 865

in Haddam from Ian Edwards and Lisa Edwards. This property consisted of approximately seven acres of land and was abutted by the property of Gilkinson and the Gilkinson Family Trust, who owned roughly 500 acres in the surrounding area. Because Gilkinson lived in California, his cousin, Dickinson, was the caretaker for the property

Dickinson and the plaintiffs coexisted peaceably until roughly three months after the plaintiffs purchased their property. At that time, Dickinson and Gilkinson's attorney, Sebastian Giuliano, began to harass and intimidate the plaintiffs at Gilkinson's behest in an attempt to drive the plaintiffs from their property. Instances of harassment included but were not limited to claiming ownership of a shared road that accessed both parties' properties and attempting to make the plaintiffs purchase a right-of-way to access their property, claiming ownership of land that belonged to the plaintiffs, filing a false survey on the land records, placing boulders blocking the plaintiffs' driveway to deny them access to their property, creating ruts in the road to make access to the driveway difficult and using a backhoe to dig a very large trench near the property line to install an unsightly, partially constructed fence made of polyvinyl chloride (PVC) pipes. Correspondence between the individuals in this case and other evidence indicated that Gilkinson himself filed the false survey and orchestrated or instructed Dickinson and Giuliano to continue the other incidents of harassment.

The plaintiffs attempted to reason with the defendants by talking to Dickinson and sending letters to Gilkinson. When these measures failed, the plaintiffs filed this action. The defendants now appeal from the judgment of the trial court. Further facts will be provided as necessary.

I

In their first claim, the defendants contend that the court improperly found that the plaintiffs possessed record title to certain property. The court found the following additional facts. "In July, 1999, the plaintiffs ... purchased real property known as 79 Park Road (formerly known as 160 Old Turnpike Road), Haddam, Connecticut, from Ian [Edwards] and Lisa Edwards. Their deed included two descriptions, one known as the historic description found in schedule A of the deed and the second known as the metes and bounds description found in schedule A-1 of the deed....

"Old Turnpike Road was a proprietor's road created back in the 1600s. The road included a switchback near its intersection with Mill Creek in Haddam, Connecticut. The switchback was clearly identified on the Ziobron survey map, the Meehan survey map, and all other maps in evidence going back as far as 1802. Old Turnpike Road was the landmark that separated the Stohlts property from the Gilkinson property to the south and had been the landmark referred to in the deeds found in both the Stohlts and the Gilkinson chain of title for at least 159 years. The difference between the so-called historic description of the property and that contained in the metes and bounds description ... is a triangular piece of land approximately one half an acre in size." The court ultimately rendered judgment quieting and settling title in the plaintiffs and concluded that there was clear error in the metes and bounds description that should be ignored in light of the correct historical description.

The defendants argue that the court incorrectly based its finding on the less precise historical deed description and the 2002 Meehan survey rather than the legal

867 A.2d 866

description divined from the Ziobron survey. Citing Mt. Maumee Partnership v. Peet, 40 Conn.App. 752, 755, 673 A.2d 127, cert. denied, 237 Conn. 924, 677 A.2d 947 (1996) and Barri v. Schwarz Bros. Co., 93 Conn. 501, 510, 107 A. 3 (1919), the defendants maintain that our law provides that when a deed contains multiple descriptions of the same parcel that appear to be either inconsistent or irreconcilable, "the rule is that the description containing less certainty must yield to that with greater certainty." We agree with the court that reliance on these cases is misplaced in this case where one description is clearly erroneous. This case is more analogous to other cases in which the pivotal questions concerned the parties' chains of title and whether various conveyances established the location of a boundary line between the two properties. See Feuer v. Henderson, 181 Conn. 454, 459-60, 435 A.2d 1011 (1980); see also Wheeler v. Foster, 44 Conn.App. 331, 334, 689 A.2d 523 (1997)

"[W]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely on the opinions of experts to resolve the problem and it is the court's duty to accept that testimony or evidence which appears more credible.... Thus, we conclude that the appropriate scope of review is whether the trial court's findings were clearly erroneous.

"[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Wheeler v. Foster, supra, 44 Conn.App. at 334, 689 A.2d 523.

As found by the court, the historic description, including the switchback, has been in the plaintiffs' chain of title for 159 years, including the current deed. The two most recent deeds also have included a metes and bounds description founded in the survey done by Richard Ziobron. This survey is clearly at odds with the historic description, but there was no explanation therein for the change in the boundary, and experts testified at trial that Ziobron ignored mapping and surveying standards and failed to honor the calls in the deeds. In addition, the deeds containing the incorrect boundary included limiting language warranting title to the property in accordance with the historic description, but not the accuracy of the legal description.² The court found that it was clear that the triangular piece of land always had been included with the transfer of the plaintiffs' property and that prior owners never maintained any interest in the land when they granted it to others.

The defendants argue that the plaintiffs must rely on the strength of their own title and not of the weakness of their adversaries'

867 A.2d 867

claim. See Koennicke v. Maiorano, 43 Conn.App. 1, 9, 682 A.2d 1046 (1996). Although this is true, the plaintiffs have proven that they possess title to the switchback. Even if it was determined that the plaintiffs did not possess title, the court would be barred from settling title to the property in the defendants without proof that they had some rightful claim to the land. In this case, the defendants offered no evidence that they had ever possessed title to the parcel of land. Therefore, we cannot conclude that the court improperly quieted and settled title to the switchback in the plaintiffs. It would be an unreasonable result to quiet title in the defendants when they presented no evidence that they ever owned the parcel of land and when it is obvious that the past grantors intended to convey all of their property interest to the plaintiffs.

II

In their second claim, the defendants maintain that the court improperly found that the general public has a right to use Old Turnpike Road. They argue that the court could not make a finding regarding the public's right because the plaintiffs never claimed any public right to the road in their amended complaint and no representative of the town or of the public at large was ever made a party to the action. We disagree.

In its memorandum of decision, the court stated: ...