Wadsworth Realty Co. v. Sundberg

• Decision Date: 04 December 1973
• Citation: 338 A.2d 470,165 Conn. 457
• Court: Connecticut Supreme Court
• Parties: The WADSWORTH REALTY COMPANY v. Hilding O. SUNDBERG et al.

Page 470

338 A.2d 470

165 Conn. 457

The WADSWORTH REALTY COMPANY v.Hilding O. SUNDBERG et al.

Supreme Court of Connecticut.

Dec. 4, 1973.

Nathan A. Resnik, New Haven, for appellant-appellee(plaintiff).

Roger J. Frechette, New Haven, for appellees-appellants(defendantsFrank J. Parese et al.).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

SHAPIRO, Associate Justice.

In this action, the plaintiff, The Wadsworth Realty Company, sought an injunction and damages for an alleged trespass.In their several and separate answers the defendants Parese and Sundberg put in issue all the material averments of the complaint and as a special defense each defendant pleaded title to the land in dispute by adverse possession.The defendants Frank J. and Frances Parese, hereinafter called the defendants Parese, as a separate and additional special defense, claimed a right-of-way by prescription and alleged that when the deed of The Forest Grove Development Company to the plaintiff was delivered, the grantor of that deed was ousted of possession of the premises.The plaintiff responded to the special defenses with a general denial.The court denied injunctive relief and damages for the plaintiff, and declared that the defendants failed to prove any title in fee or right to an easement.The plaintiff appealed the denial of injunctive relief and damages for trespass.The defendants Parese cross appealed from the denial of their special defenses.

The finding on appeal, which is not subject to correction, recites the following facts: On May 1, 1946, Michael Russo and Blacy Russo conveyed title to The Forest Grove Development Company of certain land in the town of North Haven bounded westerly for a distance of 483 feet by Washington Avenue, also known as the Boston Post Road.On July 10, 1948, The Forest Grove Development Company conveyed title to a portion of the aforesaid land to Hilding O. Sundberg and Emily H. Sundberg.On December 22, 1950, The Forest Grove Development Company conveyed title by quitclaim deed of another portion of the former Russo property to the plaintiff.On May 28, 1946, Thomas J. Fitzgerald conveyed title to the defendants Parese to certain land described as being bounded on the north, east and south by land of Russo and on the west by the Boston Post Road.The property of the defendants Parese fronts on Washington Avenue and is to the south of the plaintiff's property.There is a paved asphalt driveway running from the Parese house to Washington Avenue over land of the defendants Parese.The Sundberg property and garage have access to Wadsworth Avenue.A dirt driveway, not well defined, crosses a portion of the plaintiff's land and divides it in such a manner that one portion of it terminates at the rear entrance of the Sundberg house and the other portion terminates at the Parese garage.Both portions of the dirt driveway then reconverge and continue to Washington Avenue.In 1946, all of the area from Washington Avenue east up to a line near the foundation of the defendants Parese's house which line runs parallel to Washington Avenue was swamp.This included land of both the plaintiff and the defendants Parese.The swampy nature of this land was changed prior to 1948 by Frank Parese who raised the land three feet by filling it with his own loam and he cultivated it.The filling was done to eliminate mosquitoes and files around the Parese house.The defendantFrank Parese was the only one who maintained this property in daily use by raking, cutting and plainting.To the east of the dirt driveway and over to the Sundberg property is an area which since 1947 was cultivated as a garden by the defendants Parese and used by them to store materials.The dirt driveway was used by the defendants Parese and the Sundbergs.When Frank Parese, who called the driveway Old Brockett Road, began to use it, he did so because he believed the public had a right to use it and he, as one of the public, also had this right.At the present time, Frank Parese uses this dirt driveway because he still feels that the public and he, as one of the public, have a right to use this road.The defendants Sundberg have been using the dirt driveway since 1948 without the permission of the defendants Parese and neither ever paid taxes on the land in question.The defendants Parese never claimed that the Sundbergs or the plaintiff did not have a right to use this same driveway.The defendants Parese volunteered to improve the land and driveway in question because years ago people just did these things without asking.

Based on this finding, the court concluded that the defendants Parese failed to prove that their possession of the locus in quo was adverse and exclusive; that the plaintiff did not prove or even attempt to prove any fact showing an actual possession in itself at any time of any part of the locus in quo; that the defendants Parese and Sundberg failed to prove possession of a character that would ripen into a title by adverse possession or to prove any title in fee or a right to an easement.

On the appeal by the plaintiff, both the plaintiff and the defendants Parese assign error as to certain facts as found by the court, and the defendants Parese assign error as to the court's refusal to find certain facts.We have examined these claims and find no merit to them.

The plaintiff additionally assigns error in the conclusion reached by the court that it failed to prove actual possession in itself of any part of the locus in quo.Conclusions of the court are to be tested by the finding.Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 205, 292 A.2d 899.The conclusions which the court reached must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.Lewis v. Lewis, 162 Conn. 476, 480, 294 A.2d 637.

In its complaint, the plaintiff alleged that it was the owner and in possession of the land in dispute.Where both damages for trespass and an injunction are sought and the answer is a general denial, both title to the disputed area and possession are placed in issue.More v. Urbano, 151 Conn. 381, 383, 198 A.2d 211.Title is an essential element in a plaintiff's case where an injunction is sought to restrain a trespass.Barrs v. Zukowski, 148 Conn. 158, 165, 169 A.2d 23.Since trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail.More v. Urbano, supra.Proof of its title and the absence of actual, exclusive possession by another are sufficient to show constructive possession in the plaintiff.Banks v. Watrous, 136 Conn. 597, 599, 73 A.2d 329.

In this appeal, the finding is devoid of any subordinate facts which would even tend to show an actual possession in the plaintiff.Accordingly the conclusion of the court that the plaintiff failed to prove actual possession was legally and logically consistent with the facts and involved no application of an erroneous rule of law.The burden of proving possession was on the plaintiff, and the plaintiff failed to sustain that burden.

The defendants Parese, on the plaintiff's appeal, assign error in the conclusion of the court that (1)the defendants Parese failed to prove any title in fee or right to an easement, (2) the overruling of their claim that § 47-21 of the General Statutes makes void a deed by one out of possession, and (3) the claim that the plaintiff took nothing as to the area in dispute because not only is there no evidence of the plaintiff's predecessors' lack of possession, but there is affirmative evidence of posssession by the defendants Parese.

Where, as in this case, title is claimed by adverse possession, the burden of proof is on the claimant.Loewenberg v. Wallace,147 Conn. 689, 699, 166 A.2d 150.Adverse possession is made out only by clear and positive proof.Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385;Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690, 694, 88 A.2d 379.The essential elements of an adverse possession sufficient to create title to the land in the claimant are that the owner shall be ousted of his possession and kept out uninterruptedly for a period of fifteen years, by an open, visible...