FRANK S. MEADOW, JUDGE TRIAL REFEREE.
This case is a boundary line dispute. The plaintiff (Ryan) acquired the property at 77 East Main Street, Branford, Connecticut in June 2003 from the predecessors in title by warranty deed.
The defendants, Deborah Nuzzo and Barbara Ruocco (Nuzzo) live and have title to the adjoining property.
Ryan's post-trial brief argues whether Nuzzo provided sufficient evidence to make out a prima-facie case that they acquired the property in dispute by adverse possession. Essentially, the plaintiff brought this action to quiet title to the property which he owns against the defendants who claim the property by adverse possession.
Ryan's and Nuzzo's surveyors, and expert witnesses testified and agreed that the metes and bounds set forth in their respective deeds are the boundary lines for both parties. Therefore, the issue becomes whether the defendants presented sufficient evidence to establish adverse possession of the strip of land prepared by Nuzzos expert Robert Hart (Exhibit 4).
The defendants agree (See Defendants Brief re: adverse possession) that Nuzzo must prove that she possess the disputed property openly, notoriously and exclusively of the rightful owners for a continuous period for 15 years.
The defendants have the burden of proof to show by clear and convincing evidence that the shaded portion of the plaintiff's property described in Exhibit 4 was acquired by them through adverse possession.
"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 CT Page 8985 exclusive possession of the claimant without license or consent of the owner." (Internal quotation marks omitted.)
Lazoff v. Padgett, 2 Conn.App. 246, 248,
477 A.2d 155, cert. denied,
194 Conn. 806,
482 A.2d 711 (1984); see also
Lord v. Mansfield, 50 Conn.App. 21, 30-31,
717 A.2d 267, cert. denied,
247 Conn. 943,
723 A.2d 321 (1998). "Adverse possession must be proven by the claimant . . . by clear and convincing evidence . . .
Oak Leaf Marina, Inc. v. Ertel, 23 Conn.App. 91, 93,
579 A.2d 568, cert. denied,
216 Conn. 827,
582 A.2d 206 (1990)."
Goodrich v. Diodato, 48 Conn.App. 436, 442,
710 A.2d 818 (1998).
See Kramer v. Petisi, 53 Conn.App. 62, 67 (1999).
Possession is not to be made by inference but clear and positive proof. Robinson v. Myers, 156 Conn. 510, 517 244 A.2d 385 (1968).
In this case the witnesses could not agree and were uncertain of the exact area the defendants claim her predecessors occupied. The boundary line asserted by the defendant is based upon a new metal chain fence post which was installed in 2000 during the construction of a drainage project by the State of Connecticut.
The expert Hart was unable to determine where the chain fence was when the State obtained the construction easement in Exhibit 7. Also Hart was unable to testify how long the fence had been there. Hart further testified he drew the boundary line by what Attorney Shea, counsel to Nuzzo, told him was the area Nuzzo was claiming by adverse possession.
Any prior fencing that may have existed came down when the construction easements were completed.
The gate was put in seven years ago that the post hinges to.
The plaintiff's property was previously owned by the defendants Uncle Dick Vaillette.
At trial, by the testimony of Ms. Caporale defendant's mother owner of their home and their uncle the previous owner of the plaintiff's home did not speak to each other for years. The defendant's father, however, did speak to their uncle. The children of each house hold got along and often played together. Another witness testified the children jumped CT Page 8986 over the old fence to play together.
The defendants failed to rebut the presumption that the use of the area in question was permissive due to the familial relationships. (See 3 Am.Jur. 2d 129, Adverse Possession § 50 (2002).
The plaintiff argues that no evidence was offered by the defendants to show that the permissive use ever shifted to a hostile holding.
The defendants claim for adverse possession is essentially based on the existence of a wire fence shown in Exhibit C which ran across the properties owned by the original brother and sister and now owned by the plaintiff and the defendants respectively.
The old fence has been removed and now been replaced after the excavation by the State of Connecticut under the easements sold to the State by the predecessors in title of the Nuzzo piece. The plaintiff argues that none of the photographs introduced by the defendant show the actual location of the fence relied upon by the defendants for its claim as to adverse possession. Nuzzo testified she was sure as to the location where the fence was because of a fence post along the large chain link fence that ran along the back of the two properties. She based her opinion that the two properties came off and perpendicular to a particular fence post in the back yard. The court having heard Nuzzo's testimony was not impressed with Nuzzo's opinion as to where the original fencing was located between these two properties by the mother of Nuzzo and the conveyance "Uncle Dick Vailette's" heirs to the plaintiff. Further, the plaintiff points out that even if Nuzzo relies on the positioning of the fence post, there was no evidence that the fence post was in the same spot after the State of Connecticut's excavation under the easements.
The court is further not persuaded that Nuzzo was there at all times when the fence post was put in by the State of Connecticut in exactly the same spot that it was previously to the excavations.
In conclusion the court finds that the defendant Nuzzo has not met her burden of proof to establish her claim by adverse possession of the property in dispute. Accordingly the land in dispute is in the present owner of the property Dennis Ryan according to the metes and bounds shown upon his warranty deed dated June 19, 2003 recorded in the Branford Land records at volume 82b page 360.
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