Harris C. Daigle v. LLC (2013)

MEMORANDUM OF DECISION AFTER COURT TRIAL

I. Nature and History of the Proceedings

This quiet title action, based on a claim of adverse possession, arises out of a dispute over the ownership of a parcel of real estate consisting of 2,651 square feet or .06 acres located on Highland Lake in Winchester, Connecticut.¹  The plaintiff, Harris C. Daigle, is the record title owner of two parcels of real estate known as lots # 311 and # 312 while the defendant, Edinburgh Properties, LLC, holds record title to lots # 308, 309, and 310, all located in section G of Highland Lake Shores.   The defendant's lots are south of the plaintiff's lots.   According to an undisputed survey map (Plaintiff's Exhibit # 6), the northeasterly line of the defendant's lot # 310 passes through a major portion of a cottage that has been owned and seasonally occupied by the plaintiff and his family since 1970.²  Part of the defendant's lot # 309 passes through a smaller portion of the plaintiff's cottage.   Each of said boundary lines bisects major portions of the real property abutting the summer dwelling that, according to the plaintiff, has been continuously occupied and used by him for over forty-two years.

In his one-count complaint dated August 25, 2011, and filed September 12, 2011, the plaintiff asserts that he and his mother acquired title to lots # 311 and 312, known as 304 East Wakefield Blvd., via an executor's deed (Plaintiff's Exhibit # 1) on May 23, 1970, and that his mother conveyed all her right, title and interest in said lots to him by quitclaim deed on January 26, 1987 (Plaintiff's Exhibit # 2).   The plaintiff further alleges that the defendant acquired lots # 308, 309 and 310 by executor's deed on May 17, 2007.   See Defendant's Exhibit B. As noted, the parties are abutting owners.   The plaintiff claims that for the past four decades since he took title to lots # 311 and 312, he has used and enjoyed that portion of real estate depicted as the adverse possession line, hereinafter referred to as the disputed area, on a map entitled:  “Property Boundary Survey, Map Prepared for Harris C. Daigle, Lots 308, 309, 310, 311 & 312, Section G, Highland Lake Shores, Winchester Connecticut” dated October 8, 2012, prepared by Joseph W. Whynott, Land Surveyor, Scale 1” (inch) = 20' (feet).   Plaintiff's Exhibit # 6;  see Note 7. According to the plaintiff, the survey shows that two-thirds of the cottage and other improvements associated with the servicing and maintenance of the cottage are located on the defendant's real property.   The plaintiff claims that the use and enjoyment of the disputed area by him and by his “predecessors in title” ³ has been “open, visible, notorious, adverse, exclusive, continuous, uninterrupted and under a claim of right” for well in excess of the fifteen year common-law and statutory adverse possession requirement.⁴  In paragraph # 6 of the complaint, the plaintiff alleges eleven specific ways in which he used and enjoyed the disputed area.   The usage referred to therein is repeated in a sworn affidavit, dated August 29, 2011, that the plaintiff filed with the Winchester Town Clerk on August 31, 2011, which is recorded at Volume 402, pages 637–642, and which was filed pursuant to General Statutes Section 47–12a.⁵  See Plaintiff's Exhibit # 5.   In his complaint the plaintiff alleges and in his affidavit (paragraph # 6) the plaintiff avers that on a continuing basis since 1970 he undertook many activities within the disputed area.   He asserts that within the disputed area, he parked his automobiles, spread gravel in the parking area, entered and exited the front door to the cottage, performed maintenance on the cottage, trimmed the vegetation and continuously maintained a water line, pump house and electrical line.   Additionally, he asserts that he installed and maintained water filters and engaged in periodic gardening, all within the area north of the adverse possession line, as shown on the survey map (Plaintiff's # 6).   In paragraph # 7 of the affidavit the plaintiff claims that he had no knowledge that all of the aforementioned activities were conducted on what is now the defendant's property until he was presented with the survey map and that he believed he had record title to what is now referred to as the disputed area.   In paragraph # 8 of his affidavit, the plaintiff asserts:  “At all times since September 1970, my use of that portion of the Daigle Cottage located on the edge of the Edinburgh property and my use of that portion of the Edinburgh property located northerly of the adverse possession line shown on exhibit D [the survey map] have been without interruption, by an open, visible and exclusive possession, under a claim of right, with the intent to use the property as my own and without the license or consent of the then and present owners of the Edinburgh property, and I have thereby acquired ownership of that portion of the Edinburgh property located northerly of the adverse possession line through adverse possession.”   Pursuant to General Statutes Section 47–31, the plaintiff seeks a judgment in his favor, “settling and quieting the title” to the disputed area.⁶

On November 15, 2011, the defendant filed an answer and special defense.⁷  Additionally, the defendant filed a two-count counterclaim (# 102).   In the First Count the defendant seeks to eject the plaintiff from the disputed area (which, as noted, includes a major portion of the summer residential dwelling) and seeks $175,000 for the loss of rent and profits.⁸  In the Second Count the defendant alleges that it is the record title owner of a portion of real property, i.e., the disputed area, to which the plaintiff lays a claim that is “adverse to [its], title and interest.”   In other words, the defendant seeks the same remedy as that sought by the plaintiff, albeit, a different result, a judgment from the court settling the property dispute and quieting title as provided in C.G.S. Sec. 47–31.   Once the defendant's special defense was stricken, on May 29, 2012, the plaintiff filed his answer to the counterclaim (# 111).

The trial was held on two days, commencing October 31, 2012, and concluding November 6, 2012, when the court, after hearing oral argument, set a briefing schedule.   The last brief was filed by the defendant on March 5, 2013.   In addition to the plaintiff, the court heard from two witnesses, to wit, David Carter, who was a longtime friend of the plaintiff and Peter Kores, who referred to himself as the “owner” of Edinburgh properties, LLC. The court received fifty exhibits into evidence, which consisted of deeds, maps and a multitude of photographs.   The plaintiff submitted fifteen exhibits and the defendant submitted thirty-five.   The court, after reading all of the pleadings, reviewing and studying all of the exhibits, considering the testimony of each of the witnesses, assessing the credibility of each, and considering the oral and written arguments of counsel, for reasons hereinafter set forth, finds in favor of the plaintiff against the defendant on the complaint and on each count of the counterclaim.

II. The Claims of The Parties

It is undisputed that the plaintiff has held record title to lots # 311 and 312 since May 23, 1970, when he and his mother acquired those lots, including the seasonal cottage that was constructed by the plaintiff's predecessors in title.   The plaintiff has been the sole owner of said lots since January 1987.   Thus, as of September 12, 2011, when the plaintiff commenced this action, he owned and seasonally occupied his cottage on the lake continuously for thirty-seven summers.

The plaintiff claims that during the statutory fifteen year period, which terminated in May 1985, and for each summer up to and including the time of trial, he has made use of the disputed area in the manner alleged in paragraph # 6 of his complaint and in paragraph # 5 of his recorded affidavit.   Those uses include, inter alia, the installation and maintenance of water and electric lines, the parking of vehicles, the planting of a garden and the general upkeep of the cottage.   The plaintiff explained that he would periodically use a weed-whacker to maintain access to the water filters and would spray herbicide to kill the poison ivy that grew within the disputed area.   One must traverse the westerly portion of the disputed area in order to enter the front door of the cottage.   The plaintiff testified that in the 1970s he applied pea stone and gravel to the parking area, which is also located at the front of the cottage and which the plaintiff noted is now partially overgrown with grass and weeds.   He added that during the 1980s he removed several trees located within the disputed area in order to make room to enable him and several friends to drag a heavy replacement septic tank down through the ten-foot area southeast of and parallel to the cottage, which they then installed in the rear of the cottage.   In 1980 he was compelled to cut limbs from several trees within the disputed area in order to stop red squirrels from entering the attic.

David Carter testified on behalf of the plaintiff.   He has been a friend of the plaintiff for over thirty years.   Since 1976, he has visited and did work on the cottage many times.   He stated that during those years he helped to paint the cottage and to do so placed the ladder within the ten-foot rectangular area shown on the survey map.   Within that ten-foot area, he replaced the lattice work on the cottage.   He stated that he often would use a wheelbarrow within that area for various projects.   He confirmed the plaintiff's account of the pesky squirrels and helped the plaintiff cut the tree limbs to prevent them from entering the attic.   He explained that in 1980 he and others assisted the plaintiff in the placement of the heavy septic tank.   He pointed out the parking area in front of the cottage and stated that he regularly parked his boat trailer on the flat rock, shown in several photographs, located in front of the cottage.   In summary, he confirmed all of the allegations contained in paragraph # 6 of the plaintiff's complaint and the affirmations contained in paragraph # 5 of the recorded affidavit.

The plaintiff claims that the use of the entire disputed area has been, although seasonally, continuous, open and exclusive and based upon an honest conviction that he owned the portion of lots # 309 and # 310, which are in dispute.   The plaintiff asserts, until five years ago, when he was informed by a surveyor retained by the defendant, no one ever questioned or challenged the plaintiff's use of the disputed area.   The plaintiff pointed out, as depicted in numerous photographs in evidence, that the topography of the abutting lots now owned by the defendant confirmed the plaintiff's belief that he was the exclusive owner of the entire disputed area in that the area commencing ten feet east of the cottage and extending to the water line exhibited a significant downward slope.   See, for example, Plaintiff's Exhibit # 8.   The plaintiff confirmed that he personally used the telephone pole tops to construct the retaining wall shown in that photograph.⁹  The plaintiff asserts that he has proven, by clear and convincing evidence, each of the elements required for a finding of adverse possession of the disputed area and, further, that the defendant did not offer one shred of evidence that would negate any of those elements for the period commencing with the plaintiff's acquisition of the summer cottage in May 1970, for fifteen years thereafter and for decades after that statutory period had expired.

Although the defendant concedes that it offered no evidence that would contradict the plaintiff's asserted use of the disputed area from May 1970 to September 2007, when the defendant acquired lots # 308, 309 and 310, the defendant challenges the plaintiff's adverse possession claim as to a portion of the disputed area.   During his testimony, Peter Kores, the president of the defendant, drew the curved line that appears on Defendant's Exhibit II, which is a reduced and edited version of Plaintiff's Exhibit # 6, the official survey map.   By doing so, Kores confirmed other parts of his testimony wherein he conceded to the plaintiff adverse possession and title to the cottage and the area where the plaintiff installed the water and electric lines, but challenged the plaintiff's claim to the entire ten-foot rectangular area south of the cottage as well as a major portion of the disputed area in front of the cottage, as shown on each of said maps.   The defendant asserts that numerous photographs introduced by it during the trial negate the plaintiff's claim of continuous use of the entire disputed area.

Kores testified that at the time his corporation acquired the lots, the area “up to the plaintiff's cottage ‘looked like a jungle.’  “ He accused the plaintiff of moving the water line after the defendant took title.   He testified that the flowerpots shown on photographs submitted by each of the parties were placed in their present location after 2007.   He insisted that the tree stumps, also shown in several of the photographs, resulted from his or his agents removal of trees and thereby denied the plaintiff's account of the tree removals.   He introduced several photographs of the alleged parking area, asserting that no one would park there as it was covered with trees and brush.

In its post trial memorandum, the defendant argues that the plaintiff has failed to meet the higher burden of proof imposed upon him in order to establish a claim of adverse possession.   The defendant urges the court to find that much more is required than the planting of tomatoes, cutting of trees, whacking of the weeds and placing of ladders.   Specifically, the defendant asked the court to find that “roughly 60%” of the disputed area should remain with the defendant as the record title owner thereof.   As noted, at the conclusion of his testimony, Kores drew the uneven curved line shown on Defendant's Exhibit II in order to depict the approximate area that the defendant conceded to the plaintiff and the approximate area to which the defendant continued to assert its claim.   At that point of the trial the court advised Kores and counsel that if the court agreed with the defendant's modified claim to a portion of the disputed area the defendant needed to submit an appropriate survey map and a metes and bounds description of that portion.   Although the plaintiff attached to his memorandum a metes and bounds description of the entire disputed area depicted on the survey map, the defendant did not do so and instead submitted a straight line version of Kores' drawing.   The defendant did not submit a modified survey map showing the portion of the disputed area claimed by it.

III. Applicable Law

The doctrine of adverse possession is well established in our jurisprudence.   “A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership.   Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership.”   DeVita v. Esposito, 13 Conn.App. 101, 106 (1987);  cert denied, 207 Conn. 807 (1988).  (Internal citations omitted.)   Emphasis added.  “When adverse possession is claimed, the court must first analyze and determine who has record title ownership of the disputed piece.   Once that issue has been decided, [or, as in this case, if there is no dispute over record title], the court then determines whether the doctrine of adverse possession can be applied to divest the record owner of his title.”  Id. at page 108.   Where a claimant maintains exclusive possession of another's property under a mistaken belief that he or she actually owned said parcel such possession is deemed to be adverse.  Paletsky v. Paletsky, 3 Conn.App. 587, 588–89 (1985).

“The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner ․ Adverse possession must be proven by the claimant ․ by clear and convincing evidence.” ¹⁰ ․ [see] also General Statutes § 52–575 ․ The legal significance of the open and visible element [of adverse possession] is not an inquiry as to whether a record owner subjectively possessed an understanding that a claimant was attempting to claim the owner's property as his own.   Rather, the open and visible element requires a fact finder to examine the extent and visibility of the claimant's use of the record owner's property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own.   In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership;  viz., such acts as would ordinarily be exercised by an owner in appropriating the land to his own use and the exclusion of others.   Thus, the claimant's possession need only be a type of possession which would characterize an owner's use.   It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.”  (Citations omitted;  internal quotation marks omitted.)  Anderson v. Poirier, 121 Conn.App. 748, 752–54 (2010).  “When not claimed under color of title, adverse possession is limited to the area of land actually possessed.   It can only extend as far as the claimant has actually occupied and possessed the land in dispute.  Id., at page 755.  “The location and the condition of the land must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions.”  Lucas v. Crofoot, 95 Conn. 619, 626 (1921).   It should be noted that during the trial, in response to an inquiry by the court, counsel agreed with the court's position that once the plaintiff has proven by clear and convincing evidence each of the elements required for a successful claim of adverse possession for the fifteen-year statutory period (1970–1985), what happened thereafter is irrelevant and cannot negate the plaintiff's claim.   See Provenzano v. Provenzano, 88 Conn.App. 217, 224 (2005).

IV. Discussion

It is most significant to the court's resolution of this real property dispute that the key issue is grounded in the plaintiff's use of the disputed area from May 23, 1970, when he and his mother took title to lots # 311 and 312, to May 23, 1985, which is the requisite fifteen-year statutory period that is crucial to the court's examination.   The defendant has, admittedly, offered no evidence to dispute any of the plaintiff's claimed usages of the disputed area of the defendant's parcel during that crucial interval.   In fact, the defendant did not take title to lots # 308, 309 and 310 until 2007, twenty-two years after the statutory period had run its course.   Thus, any evidence offered by the defendant as to the appearance of the disputed area from 2007 to the time of trial is simply not relevant, that is, once the court finds that, as to the statutory period, the plaintiff has proven each element of his adverse possession claim by clear and convincing evidence.  Provenzano v. Provenzano, supra, 88 Conn.App. 224.

The court finds that the testimony offered by the plaintiff, a substantial portion of which was corroborated by Carter, and the photographs submitted by each of the parties, was a credible account of his and his friends and family's use of the seasonal lakefront cottage and the entire disputed area from the time he and his mother acquired the property up to and well beyond the statutory period.   Each of the usages of the lakeside cottage and the disputed area that were alleged by the plaintiff in his complaint and in the recorded affidavit were confirmed by the plaintiff's credible and uncontradicted testimony.   The manner in which the plaintiff made use of the disputed area is consistent with all of the actions that a record owner of the seasonal lakefront home would perform.   The usage testified to by the plaintiff and Carter is of such a nature as to openly and publicly demonstrate the exclusive control of the disputed area by the plaintiff to the exclusion of others.

Despite the defendant's contentions, the evidence clearly and convincingly demonstrates that, from 1970 to 1985, and for two decades thereafter, the plaintiff made use of the entire disputed area as shown on Plaintiff's Exhibit # 6.   That evidence clearly and convincingly demonstrates that, during the statutory period, those usages in that area, such as, inter alia, the construction and maintenance of the water and electric lines, the performance of numerous activities related to the maintenance of the cottage, and the landscaping and gardening were, to use the plaintiff's allegations;  “open, visible, notorious, adverse, exclusive, continuous, uninterrupted and under a claim of right.”   Moreover, given the topography of the defendant's abutting parcel, commencing ten feet south of the plaintiff's cottage.   It was reasonable for the plaintiff to assume that he owned that portion of the disputed area.

The court finds that the plaintiff has proven his adverse possession claim to the entire disputed area by clear and convincing evidence and that he has aptly demonstrated, through testimony and pictorial evidence, his continuous use of the entire disputed area for in excess of thirty-seven years.   Simply put, at the time that the defendant took title to its lots, the plaintiff had adversely possessed the entire disputed area for over twenty-two years.   In light of that finding, Kores' testimony, whether credible or not, as to the plaintiff's activities or lack thereof after the defendant acquired its lots is irrelevant.   As noted, the defendant offered no evidence to contradict the plaintiff's account of the use of the disputed area during the fifteen-year statutory period or, for that matter, at any time prior to the defendant's acquisition.   Therefore, the defendant's failure to produce a survey map and metes and bounds description of that portion of the disputed area claimed by it has had no effect on the court's decision.

V. Conclusion and Orders

For all of the foregoing reasons, judgment may enter in favor of the plaintiff as against the defendant on the plaintiff's (quiet title) complaint.   For the same reasons judgment may enter in favor of the plaintiff as against the defendant on the first (ejectment) and second (quiet title) counts of the defendant's counterclaim.   Said judgments will enter without costs to either party.

It is therefore ORDERED and adjudged that title to that piece or parcel of real property described in Schedule A, which is attached hereto and made a part hereof, is hereby quieted and settled in the name of the plaintiff, Harris C. Daigle, as against the defendant, Edinburgh Properties, Inc., and that said defendant has no interest or encumbrance upon said premises.   Said parcel is shown as the adverse possession line on a map entitled:  “Property Boundary Survey, Map Prepared for Harris C. Daigle, Lots 308, 309, 310, 311 & 312, Section G, Highland Lake Shores, Winchester Connecticut' dated October 8, 2012, prepared by Joseph W. Whynott, Land Surveyor, Scale 1 “(inch) = 20' (feet),” said map having been recorded at the office of the Winchester Town Clerk as map number 2107.

Wilson J. Trombley, Judge

SCHEDULE A

Beginning at a point on the easterly line of a right of way leading northwesterly from East Wakefield Boulevard in the Town of Winchester, Connecticut (which point of beginning is located N 08° 46' 11” W 23.67 feet from an iron pin located on the easterly line of said right of way marking the northwesterly corner of Lot 308 and the southwesterly corner of Lot 309 in Section G of Highland Lake Shores, as shown on the map hereinafter referred to);  thence the following four (4) courses and distances from said place of beginning along the easterly and southeasterly line of said right of way:  (1) on a curve to the right having a radius of 29.50 feet a distance of 13.57 feet to a point, (2) N 59° 26' 31” E 7.17 feet to a point, (3) on a curve to the left having a radius of 50.00 feet a distance of 26.21 feet to a point and (4) on a curve to the left having a radius of 50.00 feet a distance of 10.00 feet to a point marked by an iron pin at the northwesterly corner of Lot 310 and the southwesterly corner of Lot 311 in Section G of Highland Lake Shores;  thence S 75° 17' 36” E 87.55 feet to an iron pin at or near the high water mark of Highland Lake;  thence S 24° 23' 39” W 3.23 feet along the high water mark of Highland Lake to a point;  thence the following two (2) courses and distances through Lots 310 and 309 in Section G of Highland Lake Shores:  (1) S 85° 40' 14” W 39.34 feet to a point and (2) S 79° 12' 25” W 80.19 feet to the point and place of beginning.

Said premises are shown on a map entitled:  “Property Boundary Survey Map Prepared for Harris C. Daigle Lots 308, 309, 310, 311 & 312 Section G Highland Lake Shores Winchester, Connecticut Date: 10/08/2012 Scale:  1” = 20' “ Prepared by CCA LLC, on file in the office of the Winchester Town Clerk as Map No. 2107.

FOOTNOTES

FN1. The plaintiff described the lake as comprising 440 acres, including two town beaches;  all types of recreational water activities are permitted, including the use of motorized boats..  FN1. The plaintiff described the lake as comprising 440 acres, including two town beaches;  all types of recreational water activities are permitted, including the use of motorized boats.

FN2. The plaintiff described the cottage which is 550 square feet and consists of one bedroom and a front porch.   It was his mother's summer home from May to September and can sleep up to four persons..  FN2. The plaintiff described the cottage which is 550 square feet and consists of one bedroom and a front porch.   It was his mother's summer home from May to September and can sleep up to four persons.

FN3. Before the commencement of trial the parties agreed that the so-called “tacking” aspect of a claim of adverse possession is not relevant to the facts and circumstances of this case.   See Smith v. Chapin, 31 Conn. 530 (1863);  Marquis v. Drost, 155 Conn. 327, 332 (1967)..  FN3. Before the commencement of trial the parties agreed that the so-called “tacking” aspect of a claim of adverse possession is not relevant to the facts and circumstances of this case.   See Smith v. Chapin, 31 Conn. 530 (1863);  Marquis v. Drost, 155 Conn. 327, 332 (1967).

FN4. General Statutes Section 52–575(a), in pertinent part, provides;  “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements;  and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards.”.  FN4. General Statutes Section 52–575(a), in pertinent part, provides;  “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements;  and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards.”

FN5. Sec. 47–12a provides:(a) An affidavit, which states facts relating to the matters named in subsection (b) of this section and which may affect the title to or any interest in real estate in this state, and which is made by any person having knowledge of the facts or competent to testify concerning them in open court, may be recorded in the land records of the town in which the real estate is situated.   If so recorded, and if the affiant is dead or otherwise not available to testify in court, then the affidavit, or a certified copy of it, is admissible as prima facie evidence of the facts stated in it, so far as those facts affect title to real estate in any action involving the title to that real estate or any interest in it.(b) The affidavits provided for in this section may relate to the following matters:  Age, sex, birth, death, capacity, relationship, family history, heirship, names, identity of parties, marital status, possession or adverse possession, adverse use, residence, service in the armed forces, conflicts and ambiguities in description of land in recorded instruments, and the happening of any condition or event which may terminate an estate or interest.(c) Every affidavit provided for in this section shall include a description of the land, title to which may be affected by facts stated in the affidavit, and shall state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit.   The town clerk shall index the affidavit in the name of that record owner.Emphasis added..  FN5. Sec. 47–12a provides:(a) An affidavit, which states facts relating to the matters named in subsection (b) of this section and which may affect the title to or any interest in real estate in this state, and which is made by any person having knowledge of the facts or competent to testify concerning them in open court, may be recorded in the land records of the town in which the real estate is situated.   If so recorded, and if the affiant is dead or otherwise not available to testify in court, then the affidavit, or a certified copy of it, is admissible as prima facie evidence of the facts stated in it, so far as those facts affect title to real estate in any action involving the title to that real estate or any interest in it.(b) The affidavits provided for in this section may relate to the following matters:  Age, sex, birth, death, capacity, relationship, family history, heirship, names, identity of parties, marital status, possession or adverse possession, adverse use, residence, service in the armed forces, conflicts and ambiguities in description of land in recorded instruments, and the happening of any condition or event which may terminate an estate or interest.(c) Every affidavit provided for in this section shall include a description of the land, title to which may be affected by facts stated in the affidavit, and shall state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit.   The town clerk shall index the affidavit in the name of that record owner.Emphasis added.

FN6. Section 47–31 is entitled:  “Action to settle title or claim interest in real or personal property” Paragraph (a) provides:  “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.   Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.”.  FN6. Section 47–31 is entitled:  “Action to settle title or claim interest in real or personal property” Paragraph (a) provides:  “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.   Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.”

FN7. On January 3, 2012, the court (Pickard, J.) granted the plaintiff's motion to strike the defendant's special defense for the reason that the defendant cited an inapplicable statute.   The defendant's revised special defense was based on a claim that, pursuant to C.G.S. Section 52–275(a), the defendant's predecessor in title provided notice of the property dispute to the plaintiff and recorded the same on the Winchester Lane records.   On May 10, 2012, the revised special defense was stricken by the court (Danaher, J.) in an informative and well-reasoned memorandum (# 106.01) due to, inter alia, the failure of the defendant to commence an action to quiet title within one year of recording the notice..  FN7. On January 3, 2012, the court (Pickard, J.) granted the plaintiff's motion to strike the defendant's special defense for the reason that the defendant cited an inapplicable statute.   The defendant's revised special defense was based on a claim that, pursuant to C.G.S. Section 52–275(a), the defendant's predecessor in title provided notice of the property dispute to the plaintiff and recorded the same on the Winchester Lane records.   On May 10, 2012, the revised special defense was stricken by the court (Danaher, J.) in an informative and well-reasoned memorandum (# 106.01) due to, inter alia, the failure of the defendant to commence an action to quiet title within one year of recording the notice.

FN8. Before the commencement of the evidence, counsel agreed to bifurcate any claim of monetary damages pending the court's decision on the issue of title.   Counsel agreed that there was no reason to hear any evidence of the defendant's alleged monetary losses unless and until the adverse possession issue was decided in Edinburgh's favor..  FN8. Before the commencement of the evidence, counsel agreed to bifurcate any claim of monetary damages pending the court's decision on the issue of title.   Counsel agreed that there was no reason to hear any evidence of the defendant's alleged monetary losses unless and until the adverse possession issue was decided in Edinburgh's favor.

FN9. The plaintiff offered uncontradicted testimony that the defendant's lot had “always been” a vacant forest lot that was not used by anyone for any purpose until the defendant acquired the parcel and began to cut down some trees..  FN9. The plaintiff offered uncontradicted testimony that the defendant's lot had “always been” a vacant forest lot that was not used by anyone for any purpose until the defendant acquired the parcel and began to cut down some trees.

FN10. A finding of adverse possession is to be made out by clear and positive proof ․ [C]lear and convincing proof ․ denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution ․ [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist ․ The burden of proof is on the party claiming adverse possession.   The doctrine of adverse possession is to be taken strictly.  Marks v. Matulevich, Docket No. CV–02–00993375, Superior Court, Judicial District of Middlesex, January 31, 2005 (Silbert, J.) [38 Conn. L. Rptr. 724]..  FN10. A finding of adverse possession is to be made out by clear and positive proof ․ [C]lear and convincing proof ․ denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution ․ [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist ․ The burden of proof is on the party claiming adverse possession.   The doctrine of adverse possession is to be taken strictly.  Marks v. Matulevich, Docket No. CV–02–00993375, Superior Court, Judicial District of Middlesex, January 31, 2005 (Silbert, J.) [38 Conn. L. Rptr. 724].

Trombley, Wilson J., J.