MEMORANDUM OF DECISION ON: (A) PLAINTIFF'S POST-TRIAL MOTION TO AMEND THE COMPLAINT, (B) MOTION FOR REARGUMENT, RECONSIDERATION AND ALTERATION OF THE JUDGMENT
NADEAU, JUDGE.
On March 1, 2004, the undersigned court issued a memorandum of decision in this adverse possession matter, rejecting plaintiffs' claim of adverse possession.
Under date of March 9, 2004 (filed March 10, 2004), plaintiffs moved to "Reargue and for Reconsideration and Alteration of the Judgment."
On May 12, 2004, plaintiffs filed a "Request to Amend Complaint for the Pleadings to Conform to the Evidence."
Argument on all of the above was heard on May 24, 2004.
The request to amend will be addressed first. The court concludes that it should be denied. Essentially, plaintiffs' proposed amendment would expand paragraph 34 of the second count as it existed originally and in the January 2002 amended complaint. (Neither count, in its heading, bears a reference to a particular cause of action.)
The early paragraph 34 stated: "The defendants claim estates or interests in the land or parts thereof which are adverse to the title to the claimed area acquired by adverse possession by the plaintiffs."
The "new" paragraph 34 would read:
The individual defendants claim easements rights over the disputed area, which abuts the plaintiffs' property, which are adverse to the plaintiffs' claim of their exclusive right to use the disputed area CT Page 11474 based on the recorded deeds referring to that part of the passway and because the plaintiffs have acquired title to the disputed area by adverse possession.
This amendment has been suggested to be no more than a clarification or more specific rendering of the claims emanating from the evidence admitted at trial and the prior complaints.
While amended complaints are commonplace, their frequency surely decreases when the effort post-dates the verdict. The sought amendment does not more faithfully reflect the "way the case was tried," as has been suggested, nor, for that matter the way it was briefed, post-evidence and pre-verdict. Instead, it may merely represent a perceived sharper focus for possible appeal. One is not clear exactly how that is accomplished, but to the extent it is a goal, it does not seem entirely fair to the defendants, or, for that matter, the trial court. (The primary linguistic difference is that the original paragraph notes that "defendants claim estates or interests in the land . . ." and the proffered amendment replaces the key words in that phrasing with "easements rights," which must mean "easement rights.") Additionally, the earlier paragraphs of both count 1 and count 2 (by reference) are replete with statements that twenty-two defendants (or sets of defendants) "may claim easement rights . . ."
Given the conceptual overlap between estates, interests and easements, one is hard pressed to see that the amendment better conforms to the evidence.
On balance, it seems fairer to require that the litigant acknowledge that the claims, evidence, briefs and "verdict" are what they are (or were) without eleventh hour embroidery.
Turning now to the substantive claim plaintiffs make upon reargument:
Plaintiff states that defendants' counterclaim "alleges easement rights." Then plaintiff suggests that the individual
members of the title owner, the association, "have no right to use the disputed area."
In plaintiffs' post-trial brief, under date of November 19, 2003, written, of course prior to the request to amend the complaint, CT Page 11475 they argue that the individual association members (despite legal title being in the association) have no legal interest in the disputed area. This claim is made in post-trial reargument, also, and is pressed, arguendo, as if plaintiffs were to accept for the moment, their failure to establish adverse possession.
This court has been given no law that would support the notion that a party who has no greater individual legal interest in association land than his neighbor-opponents can exclude them from a portion that abuts his land (and that of another neighbor) after failing to legally exclude them via an adverse possession claim. Plaintiffs purport to do this by pointing to the deeds of some of the defendants (six). As noted earlier, twenty-two sets of individuals who, it is alleged in the complaint, "may claim easement rights . . ."
Six does not seem a sufficient sample to suggest that their limited deed "passport" keeps them from using the association's land The notion urged by plaintiffs suggests that the language, to "use the community recreation area" and a "right of way . . . to and from the public highway" undercuts the usage apparently inherent in association membership. In short, language which arguably falls short of affirmatively affording the right to use the disputed pathway abutting plaintiffs' property is said to exclude many individual members, a majority whose deeds are not in evidence. For plaintiff to point out that the defendants "did not offer all the deeds in their respective chains of title" does not legally convert plaintiffs into an exclusive possessor of the disputed area.
Plaintiffs note that the association is not the original grantor to the members and that there is no evidence that it bestowed full, specific easement rights upon the members to this pathway.
Plaintiffs' idea seems to be that should individual defendants, as part of a joint defense with the association, raise deed-easement language in some vague defensive gesture, that because a sample of six of twenty-two deeds falls short of a universal, go-anywhere permission, this converts to a plaintiffs' exclusionary victory despite a failed adverse possession claim. This is a far reach, a twist that might suggest chaos in every land association where the association is not the first created owner and fails to make a specific universal or all encompassing grant to each individual member. CT Page 11476
Thus, it is hard to contemplate a proper result being that one who is not a victorious adverse possessor triumphs over other association members (based on a potpourri of deed clauses) on land to which the association holds title. Without a compelling precedent, this court is unpersuaded that such a result should obtain.
Plaintiffs' argument as to the insufficiency of the deeds of members of the association must be rejected. It appears totally unnecessary to rule upon the "counterclaim" of the individuals, as this result would obtain whether or not it had been raised or vindicated.
The expanded fencing must be dismantled so as to provide the same access for association members they enjoyed prior to said fence becoming a total barrier.
Defendants' request for costs is denied.
Nadeau, J. CT Page 11477