Swenson v. Dittner

• Decision Date: 10 March 1981
• Citation: 439 A.2d 334,183 Conn. 289
• Court: Connecticut Supreme Court
• Parties: Carleton K. SWENSON, et al. v. Paul DITTNER, et al.

Page 334

439 A.2d 334

183 Conn. 289

Carleton K. SWENSON, et al. v. Paul DITTNER, et al.

Supreme Court of Connecticut.

Argued Dec. 9, 1980.

Decided March 10, 1981.

Lloyd L. Anderson, Canterbury, for appellants (defendants).

Ralph P. Dupont, New London, with whom, on the brief, was Bonita C. Frasure, New London, for appellees (plaintiffs).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ.

ARMENTANO, Associate Justice.

This is an action to quiet title to a portion of real estate ¹ owned by the plaintiffs in the town of East Lyme. The Boston Post Road, a public highway, bounds this real estate on the south, and to the north there is a tract of land owned by the Riverhead Cemetery Association. The defendants acquired, by a deed dated June 2, 1970, title to real property on the eastern boundary of the plaintiff's land. The dispute arises from the defendants' claim of an interest in a two-rod right-of-way (hereinafter the two-rod lane) on the plaintiffs' property at this eastern boundary. The two-rod lane runs from the Boston Post Road to the cemetery, and contains in its southeast corner a section of a paved driveway connecting the Boston Post Road to the defendants' property. No evidence was offered indicating whether this driveway had been used by the defendants' predecessors in title. Two easements have been granted to the state of Connecticut: one adjoins the western boundary of the two-rod lane and runs parallel to it; the other is a drainage easement and is located at the northern end of the two-rod lane.

After a trial to the court, judgment was rendered for the plaintiffs. In its memorandum of decision, the court concluded that the plaintiffs owned the two-rod lane, and that the defendants had no right to use it for access to their property. From this judgment the defendants have appealed, claiming several errors.

I

The defendants claim error because the town of East Lyme and the state of Connecticut were not made parties to the action, even though they may have had an interest in the disputed title. The defendants allege that the town's interest centered on its maintenance of the two-rod lane and its use as a public way, while the state's concern grew from its ownership of the easements.

An action to quiet title is a statutory action instituted under the provisions of General Statutes § 47-31. The statute requires the plaintiffs to name the person or persons who may claim such adverse estate or interest. Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 293, 231 A.2d 276 (1967). So that the trial court can make a full determination of the rights of the parties to the land, and action to quiet title is brought against persons who claim title to or have an interest in the land. Cahill v. Cahill, 76 Conn. 542, 547, 57 A. 284 (1904). Only the parties to an action to quiet title are bound by the judgment. Lake Garda Improvement Assn. v. Battistoni, supra, 76 Conn. 294-95, 231 A.2d 276. The failure to include the town of East Lyme and the state of Connecticut in this case is not error because the decision to join a party in a suit to quiet title is made by the plaintiff.

II

The second claim is that the court erred in its conclusion that the plaintiffs were the owners of title to the two-rod lane. "Our review of such claims is limited to a determination of whether the decision of the trier was clearly erroneous in light of the evidence and the pleadings in the whole record. Practice Book, 1978, § 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980)." Stelco Industries, Inc. v. Cohen, --- Conn. ---, ---, ---, 438 A.2d 759 (1980).

The description of the first tract, set forth in the deed from the plaintiffs' grantors to them, encompasses and contains the two-rod lane. See footnote 1, supra. Edmond Sitty, a licensed engineer, a licensed surveyor and town engineer for Groton testified that from his examinations in the field, of the land records, and of maps and drawings prepared for the plaintiffs' predecessors in title, it was his opinion that the plaintiffs owned the two-rod lane and that the defendants' driveway encroached on the plaintiffs' property. His certified survey was admitted into evidence. Neal Williams, an attorney, examined the chain of title to the plaintiffs' property dating back eighty years and concluded that title to the two-rod lane was vested in fee simple in them.

Cecile Bank, a licensed surveyor and witness for the defendants, testified that the plaintiffs did not own title to the two-rod lane. He was unable, however, to name the owner, stating that further research would be required to establish his identity.

The sifting and weighing of evidence is peculiarly the function of the trier. "(N)othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony." Steinman v. Maier, 179 Conn. 574, 575-76, 427 A.2d 828 (1980), quoting Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The rare occasion where testimony supporting a fact is such that the court could not reasonably disbelieve it; Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 489, 356 A.2d 117 (1975); is not present in this case." Steinman v. Maier, supra.

On appeal, the defendants attack the plaintiffs' claim of ownership of the two-rod lane by implying that the defendants were in fact the true owners. This argument must fail because of the court's finding of the defendants' concession during trial that they had no claim of title in the two-rod lane. This finding is supported by their own testimony. ² Furthermore, the defendants were unable to identify any other person as the true owner of the two-rod lane.

III

The defendants also attack the court's conclusion that they had no use right in the two-rod lane. This argument must be judged by the same standard as the previous one. See Stelco Industries, Inc. v. Cohen, supra. After an examination of the record, we are unable to find any express easement granting to the defendants the right to use the two-rod lane. Any claim for a prescriptive easement in favor of them must likewise fail.

In a claim for a prescriptive easement, the burden is on the party claiming the right. Horowitz v. F. E. Spencer Co., 132 Conn. 373, 377, 44 A.2d 702 (1945); Shea v. Gavitt, 89 Conn. 359, 363, 94 A. 360 (1915). The essential elements are a use which is open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. General Statutes § 47-37; Mihalczo v. Woodmont, 175 Conn. 535, 541, 400 A.2d 270 (1978); Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 463, 338 A.2d 470 (1973); Dunn v. Santino, 139 Conn. 352, 355, 93 A.2d 726 (1952). Whether the requirements for such a right have been met in a particular case presents a question of fact for the trier of facts. Wadsworth Realty Co. v. Sundberg, supra, 165 Conn. 464, 338 A.2d 470; Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). The record indicates that the defendants did not meet their burden, particularly the fifteen year element. Neither is there any evidence to establish an easement by necessity or by implication. Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398-99, 324 A.2d 247 (1973); D'Amato v. Weiss, 141 Conn. 713, 716-17, 109 A.2d 586 (1954).

The defendants also argue that the two-rod lane was a public way. The two elements essential to establish a valid dedication of a public way are clearly laid out in A & H Corporation v. Bridgeport, 180 Conn. 435, 441, 430 A.2d 25 (1980), and need not be repeated here. We have examined the record and have found the evidence insufficient to support a finding of the existence of either of these elements.

IV

The defendants next claim that the court erred in advising the pro se defendants ³ that they could not claim ownership of the two-rod lane by adverse possession. During the trial, the defendant husband and the court exchanged responses. ⁴ The isolated remark by the trial court that "(Y)ou only got your property in '77 so there is no question of adverse possession," was unfortunate and subject to misinterpretation. Taking the dialogue as a whole, however, the court was helpful and informative as to the proof required to establish adverse possession. The defendants were informed that they should put into evidence prior deeds and the testimony of prior owners of their property. With this evidence, the trial court could determine the full period of possession by the prior owners of their land. More importantly, even if the court's remarks were improper, they worked no prejudice to the defendants. Adverse possession deals with the ownership of real property, not the use of it, and the defendants admitted that they made no such claim of ownership. See footnote 2, supra.

V

The defendants' final claim is that because they appeared pro se, the trial court erred by not advising them of three possible defenses to the plaintiffs' complaint: implied right-of-way (easement by implication), easement by necessity and prescriptive easement. ⁵

"A judge ... should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." He should not "convey or permit others to convey the impression that they are in a special position to influence him." Cannons 2 A and 2 B of the Code of Judicial Conduct. The trial judge should be the exemplar of dignity and impartiality. United States v. Cruz, 455 F.2d 184, 185 (2d Cir. 1972), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972). "The action of a judge taking an apparent position of advocacy in a case before him has been continually condemned." (Citations omitted.) State v. Echols, 170 Conn. 11, 13-14, 364 A.2d 225 (1975); Quednau v. Langrish, 144 Conn. 706, 719, 137 A.2d 544 (1957). Once a judge becomes an advocate for one of the parties in a lawsuit, grounds for...