Mary Lou Steponaitis v. Richard P. Gravel et al. (2013)

CORRECTED MEMORANDUM OF DECISION

This case was tried to the court on June 4 and 5, 2013.   The first count of the plaintiff's complaint alleges adverse possession, the second count alleges conversion of personal property, and the third count alleges statutory theft.   The court finds the following facts and makes the following conclusions of law.

The plaintiff, Mary Lou Steponaitis, owns an 18–acre parcel of land on the easterly side of Route 272 in Torrington, Connecticut (“plaintiff's land”).   The plaintiff's husband bought the plaintiff's land in 1975 and conveyed it to the plaintiff in 1976.   In this decision the court will use the word “plaintiff” to refer to the plaintiff and her husband jointly.   The plaintiff's land adjoins another parcel of land of similar size owned by the defendants, Richard P. Gravel and Jill E. Gravel (“defendant's land”).   The defendants acquired their parcel in December 2010 from Michael Camarata and Carol Zipke who had owned the land since 1975.   The two parcels share a boundary of more than 1,100 feet.

In the first count of her complaint, the plaintiff claims that she has adversely possessed a portion of the defendants' land comprising 5.913 acres (“disputed parcel”).   She seeks a judgment quieting title in her pursuant to C.G.S. § 47–31.   The disputed parcel is bisected north to south by the West Branch of the Naugatuck River, a river which is between 40 and 50 feet wide.   For the purposes of this decision, the court will refer to the part of the disputed parcel lying to the west of the river as the “westerly section” of the disputed parcel and the portion lying to the east of the river as the “easterly section” of the disputed parcel.

The plaintiff planned that the property would be the site of a future home.   As a result of discussions with the listing real estate agent, the plaintiff believed that a large maple tree with yellow paint on it marked the north-western corner of her property.   In fact, the north-western corner of her land was more than 100 feet south of that tree.

During the summer of 1975, the plaintiff met Michael Camarata who owned the defendant's land at that time.   Neither knew the precise boundary line dividing their properties but they both believed that the maple tree with the yellow paint marked the south-western corner of the defendant's land and the north-western corner of the plaintiff's land.   Both believed that the plaintiff could construct a driveway into her land to the future house-site provided that it was to the south of the maple tree with the yellow paint.

In 1977 the plaintiff hired an excavator who constructed a dirt driveway beginning immediately southerly of the maple tree with yellow paint.   The plaintiff obtained permission from the State of Connecticut to connect to the State highway (Route 272) and to construct an asphalt apron at the intersection with Route 272.   The driveway crossed the westerly section of the disputed parcel and then entered the plaintiff's land.   Within the next two years the plaintiff caused electric service to be brought from Route 272 across the westerly section of the disputed parcel and onto the plaintiff's land.

The plaintiff cut trees on the westerly section of the disputed parcel, stored materials along the driveway, and placed a wooden play house near Route 272 where her children played.   From the time of her purchase of her land in 1975 until the present time, the plaintiff has treated the westerly section of the disputed parcel as her own and with the belief that it was a part of her land.   The driveway has been visible from the road for over 30 years.   The other uses were open and obvious to anyone who walked a short distance up the driveway.

The plaintiff's use of the eastern section of the disputed parcel has been less intense.   This section is heavily wooded and rugged.   The plaintiff has built crude bridges of tree trunks across the river for the purpose of hiking, picnicking and hunting.   The plaintiff authorized a man to hunt on her property, including the eastern section of the disputed section.   For an undetermined period of time, the plaintiff posted “No trespassing” signs on or near the northerly boundary of the eastern section of the disputed parcel.

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.”   Evita 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.” [fn10] “․ [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).

The plaintiff has proven by clear and convincing evidence each of the elements of adverse possession as to the western section of the disputed parcel.   The plaintiff's use has been open, visible, exclusive and uninterrupted for more than fifteen years.   The use has been made under the mistaken belief that she actually owned the western section.

The eastern section of the disputed piece must be treated in a different way.   It is physically separated by the river from the western section.   It is more wooded and rugged in terrain.   The plaintiff thought she owned this section but has never exercised the same kind of dominion over it that she has over the western section.   The plaintiff's use of this section was not significant enough to put anyone on notice that she was claiming the property as her own.   Unlike the western section where the plaintiff built a driveway and stored personal property, there was nothing done to the eastern section which would put someone on notice of a claim of right.   The evidence of the duration of “No trespassing” signs was not clear and convincing.   Occasional picnicking and sporadic hunting is not sufficient to openly and publicly indicate control of the land.   For these reasons, the plaintiff has not proven adverse possession of the eastern section.

The second and third counts relate to the plaintiff's claim that the defendants removed from the western section of the disputed parcel two “I” beams and converted them to their own use.   Both claims must be rejected because the plaintiff was unable to prove that she, and not the defendants, owned the “I” beams.   The evidence of ownership was disputed and confusing.   The court is unable to make a finding that the plaintiff owned the “I” beams.

A judgment shall enter in favor of the plaintiff on the first count quieting title in her as to the western section of the disputed parcel described as follows:

Beginning at a point on the easterly side of Connecticut Route 272, said point being S 04° 22 § 11 E 276.82' from a certain concrete highway monument, said point of beginning having NAD 83 coordinates of N 876342.809 and E 886212.295;  thence along the easterly line of said highway N 04° 22 § 11 W 109.56' to a point marking the northwesterly corner of this piece;  thence along Robert P. and Jill E. Gravel N 85° 55 § 51 E to the westerly bank of the West Branch of the Naugatuck River;  thence along the westerly bank of the West Branch of the Naugatuck River to a point;  thence N 85° 25 § 40 W to the point or place of beginning.   Said parcel is bounded as follows:

Northerly and Easterly by Richard P. And Jill E. Gravel;

Southerly by Mary Lou Steponaitis;

Westerly by Connecticut Route 272.

Judgment shall enter in favor of the defendants on the first count as to the eastern section of the disputed parcel.   Judgment shall enter in favor of the defendants on the second and third counts.

BY THE COURT,

John W. Pickard

Pickard, John W., J.