Michael F. Chebro et al. v. Jonathan C. Audette

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Superior Court of Connecticut.

Michael F. Chebro et al. v. Jonathan C. Audette

WWMCV095004630S

-- September 23, 2010

MEMORANDUM OF DECISION

This matter, involving a property line dispute, was tried before the court on April 15, 2010.

The plaintiffs, Michael F. Chebro, and his wife, Jeanne E. Curtin-Chebro, reside at 42 English Neighborhood Road, in Woodstock, CT. The plaintiffs took title to their property in 1994.   The defendant, Jonathan C. Audette, resides at 611 Route 197 in Woodstock, CT. The defendant took title to his property in 2006.   The rear boundary lines of these two properties abut, and the exact location of this shared boundary line, where the line crosses English Neighborhood Brook and approaches a trout pond on the plaintiffs' property, is in dispute.

As a result of this dispute, the plaintiffs commenced an action to determine the exact location of the common rear boundary line.   This action to quiet title pursuant to § 47-31 was filed on April 16, 2009.   In their complaint, the plaintiffs allege that the defendant has claimed an interest in land or parts thereof which are adverse to the title of the plaintiffs.   In their Prayer for Relief, the plaintiffs seek “judgment determining the rights of the parties in and to the land and settling the title thereto,” as well as “an order that the defendant remove any and all iron rods or survey pins placed by him or his agents from the plaintiffs' property.”   The defendant filed his answer to the plaintiffs' complaint on July 8, 2009, along with a counterclaim seeking essentially the same relief as the plaintiffs.

In order to advance the case, the plaintiffs hired a surveyor, Barry Davis Clarke of Gardner-Peterson Associates in Tolland, CT to prepare a survey.   That survey is plaintiffs' Exh. 7. The defendant hired Jeffrey Stefanik, a surveyor employed by C.M.E. Associates of Woodstock, CT. The survey prepared by Mr. Stefanik is plaintiffs' Exh. 8. Both are “A-2” surveys.   The two surveys rely on Exh. 9, the Perry survey.   A trial was held on April 15, 2010 in Willimantic, CT. Both surveyors were called as expert witnesses by their respective parties.   Ernest St. Jean, an abutting property owner, also testified.

During the trial, Clarke testified that when his crew went to the plaintiffs' property, they were able to locate the three iron pins referenced in the Perry survey description.  (Tr. p. 23, 26 & 28.)   He also located a stone wall which was utilized as a monument as well in his attempts to verify the dimensions of the property and to “close” the mathematical data utilized in preparing the description.  (Tr. 29, 33, 34, 43 & 44.)   It was his opinion that the known and fixed monuments from the Perry survey were verified-the stone wall, fence remains and iron pins--and incorporated into his map, plaintiffs' Exh. 7, which comported with the Perry map, plaintiffs' Exh. 8 when overlaid over it even though the mathematical calculations (Tr.51-52) failed to “close.”  (Tr. 71, 72).

The defendant called Mr. Stefanik to testify.   He is a very experienced land surveyor who is licensed in Connecticut, New Hampshire, Rhode Island, Vermont and New York (Tr. 132).   He prepared an A-2 boundary survey (Tr. 134).   In preparation, he reviewed plaintiffs' Exh. 7, conducted research of the land records and made field visits to the site.   In spite of having plaintiffs' Exh. 7 and a metal detector with him, Mr. Stefanik failed to locate the pins referred to on Exh. 7 as pins # 1 and # 2.   He did, however, locate an iron pin further north on the northeast corner of the Audette property.   While the pins, # 1 and # 2, were the monuments used by Clarke to prepare plaintiffs' Exh. 7 rear boundary line, Stefanik utilized the iron pin that he found at the northeast corner and then relied upon two of the Perry (Exh. 9) deed dimensions as “starting points and monumented the boundary.”  (Tr. 143.)   He then goes on to state:  “The distances are more certain than anything else in this description, and more certain than the map.”  (Tr. 144.)   Further on in his testimony, he states:  “․ I think those pipes are meaningless at this point.”  (Tr. 146 referring to the iron pins # 1 and # 2 referred to by Clarke and located on Exh. 7.) He also opines “․ the deeded dimensions carry more legal weight” (than the monuments-the iron pins).  (Tr. 146.)   In fact, Stefanik opined that even if he had found the two pins from Clarke's survey-located from the original Perry survey in 1975 (Exh. 9)-it would not have made any difference to him in preparing his survey.  “I would have gone with the deeded dimensions that are in the public record.”  (Tr. 152.)   When asked whether deeded distances rule over angles and bearings on map, he replied, “In the State of Connecticut, they do.”  (Tr. 153.)   Both surveyors agreed that the original Perry survey (Exh. 9) was inaccurate with regard to its mathematic calculations, as these calculations would not “close” the property dimensions so that it was a matter of attempting to reconstitute the correct property dimensions from all the available information and make a determination as to the proper location of the “rear” property line between the Chebro and Audette properties.

The origins of this boundary dispute began in 1975 when Herbert F. Stickney and Doris E. Stickney, predecessors in title to the plaintiffs, and Frederick R. Hayes and Lucille D. Hayes, predecessors in title to the defendant, engaged in a land swap.   The Stickneys retained Gilbert F. Perry, a land surveyor, to survey the lands to be conveyed between the Stickneys and the Hayeses.   Perry prepared plaintiffs' Exh. 9, the Pine Brook Manor survey, dated June 23, 1975, and recorded on the Woodstock Land Records.   After 1975, the deeds to both the plaintiffs' and the defendant's properties referred to the Pine Brook Manor survey.   Soon after the defendant acquired title, this boundary dispute began at the properties' rear boundary.   The land in dispute includes a parcel of the defendant's land that crosses English Neighborhood Brook and approaches the trout pond on the plaintiffs' property.   In Schedule A of the defendant's warranty deed, this parcel of land is identified as “Tract Two.” 1

In their post-trial brief, the plaintiffs state that the primary difference between the surveys prepared by Stefanik and Clarke is “their views of survey basics” and that “Clarke relied on monuments ․ as well as bearings.”   In contrast, the plaintiffs' brief continues, Stefanik “insisted repeatedly that he relied on distances shown in the deeds.  ‘The distances are more important than anything else,’ [Stefanik] told the court.”   The plaintiffs argue that Connecticut case law favors Clarke's opinion that monuments will control over courses and distances in a court's determination of the location of a disputed boundary line.   The plaintiffs' brief states that Stefanik did not find an iron pipe on the north bank of the English Neighborhood Brook, one of two pipes referred to in the plaintiffs' survey as original pipes depicted in the 1975 Pine Brook Manor map, and that Stefanik testified that the locations of those two pipes were “irrelevant” to him.   In addition to identifying those two pipes, Clarke's field crew, in conducting the survey for the plaintiffs, found stone walls and the remnants of a wire fence.   The plaintiffs' brief states that Clarke testified that his survey relied on monuments, such as the iron pipes, as well as other factors such as the angles and bearings of the Pine Brook Manor survey and that his survey “more accurately reflected the intent of the boundary's two owners in 1975 as reflected in the monuments, the 1975 survey, and the bearings.”

In his post-trial brief, the defendant states that in preparing the survey of the parties' properties, Stefanik relied upon the distances set forth in the parties' deeds, “as they had the greatest level of accuracy and the least ambiguity.”   Additionally, the defendant argues, Clarke's reliance on the bearings was inappropriate because they were not certain and had a greater level of ambiguity than the called distances.   The defendant, in his own brief, concedes that there is a “general hierarchy of calls under which other things being equal, resort is to be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries (which are considered a sort of monument) and thereafter to courses and distances.”  (Internal quotation marks omitted.)   The defendant asks this court to enter judgment in his favor despite the fact that the surveyor retained by the defendant did not rely upon fixed monuments, but instead only upon the distances called for in the deeds.

General Statutes § 47-31(a) provides in relevant part:  “An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property.”  General Statutes § 47-31(f) provides:  “The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.”

In an action to settle title to lands and boundaries between parties, “[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 upon 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.”  (Internal quotation marks omitted.)  Har v. Boreiko, 118 Conn.App. 787, 796, 986 A.2d 1072 (2010), citing Feuer v. Henderson, 181 Conn. 454, 458, 435 A.2d 1011 (1980).

“In determining a boundary line in a deed, the law is clear that the description in the deed, if clear and unambiguous, must be given effect.   In such a case, there is no room for construction.   The inquiry is not the intent of the parties but the intent which is expressed in the deed ․ Where the deed is ambiguous, however, the intention of the parties is a decisive question of fact ․ In ascertaining the intention of the parties, it [is] proper for the trial court to consider the surrounding circumstances.”  (Citations omitted;  internal quotation marks omitted.)  Koennicke v. Maiorano, 43 Conn.App. 1, 10, 682 A.2d 1046 (1996).  “The intention of the parties controls and is to be followed when the location of the boundary lines of the land is uncertain by reason of inconsistent or conflicting descriptive calls in the conveyance which cannot be explained by any competent evidence.   Upon ascertaining the parties' intention, all other rules of construction and interpretation must yield to that intention.”   12 Am.Jur.2d 394-95, Boundaries § 2 (2009).

“In construing a deed, a court must consider the language and terms of the instrument as a whole ․ Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties ․ In arriving at the intent expressed ․ in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence ․ 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 ․ Thus, if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity.”  (Citations omitted;  internal quotation marks omitted.)  Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780-81, 687 A.2d 1270 (1997).

“[W]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances.”  (Internal quotation marks omitted.)  Koennicke v. Maiorano, supra, 43 Conn.App. 10, citing Frank Towers Corp. v. Laviana, 140 Conn. 45, 50, 97 A.2d 567 (1953).  “The rule is, that known and fixed monuments control courses and distances.   So the certainty of metes and bounds will include all the lands within, though the quantity vary from that expressed in the deed.   The least certainty must yield to that which is most certain, if they cannot be reconciled.”  Belden v. Seymour, 8 Conn. 19, 24 (1830).  “The terms ‘courses and distances,’ ‘runs and calls,’ and ‘angles and distances' are synonymous;  they all refer to the angles and scaled distances indicated on a plat ․” 12 Am.Jur.2d 399-400, Boundaries § 7 (2009).

“A ‘monument,’ when used in describing land, has been defined as ‘any physical object on the ground which helps to establish the location of the line called for and the term “monument” when used with reference to boundaries, indicates a permanent object which may be either a natural or artificial one ․ Natural monuments include such natural objects as mountains, streams, rivers, creeks, springs, trees ․ Artificial objects and monuments consist of marked lines, stakes, rocks, fences, buildings and similar matters marked or placed on the ground by the hand of man.’   12 Am.Jur.2d 549, Boundaries § 4.” Koennicke v. Maiorano, supra, 43 Conn.App. 11.  “[M]onuments named in deeds are given precedence over courses and distances, because the parties can see the tree, stone, stake, pipe or whatever it may be, which is referred to in the deed, but would require equipment and expect assistance to find a course and distance.”   (Emphasis added;  internal quotation marks omitted.)  Id., 12, citing Delphey v. Savage, 227 Md. 373, 378, 177 A.2d 249 (1962).

“In the case of conflicting descriptions, courses and distances are controlled by and must yield to monuments whether natural or artificial ․ It is only in the absence of all monuments and marks upon the ground and in the total failure of evidence to supply them that recourse can be had to calls for courses and distances as authoritative.”   12 Am.Jur.2d 439, Boundaries § 57 (2009).  “The physical disappearance of a monument does not end its use in defining a boundary in a deed if its former location can be ascertained;  a trial court has a duty to determine, if possible, the original location of a monument.”   12 Am.Jur.2d 398, Boundaries § 6 (2009).

“Natural objects, artificial monuments, and adjacent boundaries, which are all, in a general sense, termed ‘monuments' by the courts ․ will ordinarily, in case of conflict in the description of boundaries to land, control all other calls.   The reason for the rule is that mistakes in courses and distances are more probable and frequent than in marked trees, mountains, rivers, and other objects capable of being clearly designated and accurately described;  courses and distances are usually descriptive of the designated monuments and depend for their accuracy upon the skill and experience of the surveyor ․ A monument is only controlling, however, if it is referred to in the deed.”   12 Am.Jur.2d 443, Boundaries § 61 (2009).

Some additional guidance from the Supreme Court can be found in Velsmid v. Nelson, 175 Conn. 221, 222, 397 A.2d 113 (1978), a matter in which the plaintiffs commenced an action in trespass seeking damages and an injunction requiring the defendant to remove her garage from land allegedly belonging to the plaintiffs.   The disputed boundary line was the westerly boundary of the plaintiffs' land which was also the easterly boundary of the defendant's land.  Id., 223.   The plaintiffs called as a witness a licensed land surveyor who had surveyed and prepared a map of the plaintiffs' land and determined that the defendant's garage encroached on the plaintiffs' property.  Id. The defendant did not retain a land surveyor to testify but instead called as a witness an attorney primarily engaged in real estate law.   Id. The real estate attorney's title searches of both properties revealed that the disputed boundary line ran continuously in a northwesterly direction, a fact in accord with the plaintiffs' survey, however, the attorney further testified that the plaintiffs' survey “was in error in that (a) it failed to show a break in the disputed boundary line with the line changing its direction slightly, and (b) the frontage reflected on the survey was off by fifteen feet, thus placing the disputed line fifteen feet from where it should have been located.”  Id., 223-24.   On the basis of the real estate attorney's testimony, the trial court concluded both that the plaintiffs failed to establish the disputed line and that they failed to prove that the defendant's garage encroached upon their property.  Id., 224.

The Supreme Court reversed the decision of the trial court and ordered a new trial reasoning that the “trial court's reliance on [the real estate attorney's] testimony that the survey was in error by virtue of the boundary line's placement some fifteen feet from where it should have been according to the deeds was ․ in error ․ Where the length of a piece of property determined by a survey is at variance with the length called for in a deed, it is not to be presumed that the variance was caused from a defective survey in any part, but it must be presumed, in the absence of circumstances showing the contrary, that it arose from imperfect measurements of the whole line ․ [as denoted in the deed] ․ As this court has stated, [w]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances.”  (Citation omitted;  internal quotation marks omitted.)  Id., 226-27.   The court concluded that “neither the findings nor the exhibits indicate that [the plaintiffs' surveyor] erred in relying on the westerly boundary of the defendant's property as a starting point for his survey.   The land of an adjoining proprietor whose boundaries can be fixed by known monuments is also considered to be a monument to establish a boundary ․ Further, the survey map as well as [the plaintiffs' surveyor's] testimony reveals that by such measurement, an iron pipe was found to mark the disputed boundary.   Consequently, the record offers no support for the court's conclusion that the survey placed the boundary line fifteen feet from where it should have been.”  (Citation omitted;  internal quotation marks omitted.)  Id., 227-28.

In analyzing all of the testimony from the trial, as well as the numerous exhibits submitted by both parties, it is the decision of the court that judgment must enter in favor of the plaintiffs, Michael F. Chebro and Jeanne Curtin-Chebro, on the complaint and against the defendant, Jonathan Audette.   On the counterclaim (# 102), judgment must enter in favor of the plaintiffs (defendants on the counterclaim) and against the defendant (plaintiff on the counterclaim).   In this boundary line dispute, the plaintiffs, through their expert witness, rely on a property survey, that utilizes fixed monuments identified in the deed (iron pins, a stone wall and fence remnants) while the defendant, through his expert witness relies upon a survey that utilizes only distances to formulate the property boundary.   This court cannot ignore clear Connecticut case law indicating that where there is a conflict in identifying boundary lines, monuments will control over distances.   Judgment may enter as previously set forth and the boundary line between the parties' respective properties will be as set forth in plaintiffs' Exh. # 7, the Gardner-Peterson (Clarke) survey.

THE COURT

RILEY, J.

FOOTNOTES

1.  FN1. Tract Two is described in Schedule A of the defendant's warranty deed as follows:A certain tract or parcel of land located southwesterly of English Neighborhood Road in the Town of Woodstock, County of Windham and State of Connecticut, bounded and described as follows:Beginning at the southerly corner of the within described parcel of land at a point on a stone wall opposite an iron in the ground at the northwesterly face thereof, which point also marks the easterly corner of other land of Frederick R. Hays and Lucille D. Hays;  thence N. 51 degrees 30', W. 192.0 feet, more or less, to an iron in the ground;  thence S. 87 degrees 15' W. 190.00 feet, more or less, to a fence post corner, the last two courses adjoining land of said Hays, the within grantees;  thence N. 81 degrees 45', E. 200.0 feet, more or less;  thence S. 57 degrees 00' E. 190.0 feet, more or less, to a point on the stone wall;  the last two courses adjoining land of Dennis H. Boxx and Colleen R. Boxx;  thence S. 19 degrees 45' W. 30.0 feet, more or less, adjoining land, now or formerly of Ernest M. St. Jean and Margaret A. St. Jean, to the point and place of beginning;  the within described parcel containing 0.12 acres of land.Being Parcel # 5 on a plat entitled “PLAN OF ‘PINE BROOK MANOR’ owned by Herbert F. Stickney & Doris E. Stickney, Woodstock, Connecticut Scale 1” = 60' June 23, 1975 Gilbert F. Perry, C.E.,” on file in the office of the Town Clerk of Woodstock.Being the same premises conveyed to Frederick R. Hays and Lucille D. Hays by Warranty Deed (Survivorship) of Herbert F. Stickney and Doris E. Stickney dated April 23, 1976, and recorded in Woodstock Land Records, Vol. 81, Page 293.

Riley, Michael E., J.

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