Julie Fitts Ritter v. Catherine Duncan et al. (2010)

MEMORANDUM OF DECISION

The plaintiff Julie Fitts Ritter is the owner of property known as 23 Timber Hill Road located in Cromwell, Connecticut.   The plaintiff has commenced this action against Catherine Duncan, the owner of abutting property known as 26 Elm Road, Cromwell, Connecticut.   Plaintiff in her complaint seeks, inter alia, to quiet and settle title to the property located at the intersection of 23 Timber Hill Road, Cromwell, Connecticut and 26 Elm Road, Cromwell, Connecticut.   The former owner of the plaintiff's property was Michael R. Shukia and Alicia B. Shukis, who conveyed title to the plaintiff's property October 28, 1993 to the plaintiff and her husband at the time, Kent Ritter.

The defendant denies the claims of the plaintiff concerning the contested piece of property which is in the shaded area of the survey which is Plaintiff's Exhibit 1a.   This dispute arose after the defendant had a survey prepared.   That survey revealed that the plaintiff was treating the land in question bordering both properties as her own.   The plaintiff claims title to this strip of land through adverse possession.   The court heard the testimony and received into evidence exhibits on June 2nd and June 4th, 2010, and received the final briefs of the parties on June 17, 2010.

In the spring of 1994 the plaintiff planted a garden in part of the area in dispute.   She stated that she has consistently used that area for gardening and general enjoyment during that period until the defendant had a survey made and had the boundary lines staked.   In addition to using that part of the disputed property, the plaintiff claims that the other part of the disputed property closer to the street was an area where the plaintiff placed garbage cans and trucks were parked.

The plaintiff's former husband, a former landscaper, the former owner of her property and a neighbor all testified giving support to the claims of the plaintiff.   The defendant, her sons and her mother testified claiming that the property in dispute was not adversely possessed.   One of the sons stated he trimmed a tree in the disputed area.   Moreover, the son stated he placed a wire fence to control his dog on his mother's property.   He testified that the fence was not intended to be on the border of the property.   And, the defendant's mother testified that she had expressed concern to her neighbors that they were crossing the boundary line.   Finally, the defendant testified that the trees prevented her from seeing the disputed area, so it was not open and visible.

The standard of proof for proving title by adverse possession is “clear and positive proof.”   8 Roche v. Fairfield, 186 Conn. 490, 498 (1982);  Whitney v. Turmel, 180 Conn. 147 (1980);  Wadsworth Realty Co. v. Sundberg, 165 Conn. 457 (1973).   The elements of adverse possession are questions of fact for the trial court Lucas v. Crofort, 95 Conn. 619 (1921).   To establish title by adverse possession the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner.   While the plaintiff presented credible evidence, for the foregoing reasons and upon the foregoing authorities, the Court finds that the plaintiff, Julie Fitts Ritter, has not proven her claim of adverse possession.   Judgment enters forthwith for defendants, Catherine Duncan, et al.

Richard E. Burke, Judge

Burke, Richard E., J.