LEWIS, JUDGE TRIAL REFEREE.
This case involves a dispute between the plaintiffs, Charles L. DeSiena and Laurita S. DeSiena, who own and reside at 8 Cornwall Drive, Norwalk, and the defendant, John Filippidis, owner and resident of adjoining property at 101 Ponus Avenue. The plaintiffs claim title by reason of adverse possession to a small parcel of land the owner of record of which is the defendant. See General Statutes § 52-575.
General Statutes § 52-575(a) provides in pertinent part that: "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 . . ."
The plaintiffs filed a complaint alleging that they and their predecessors in title possessed and used a portion of the defendant's property at 101 Ponus Avenue, approximately 2,233 square feet, located in the back yard of their property, for more than fifteen years in an "open, visible, notorious, adverse, exclusive, continuous, uninterrupted" manner and, therefore, had become the owners thereof. The plaintiffs described the parcel in issue as containing a portion of a driveway, some piles of firewood, a stone wall, a storage shed, bushes, a garden and grassy areas. The plaintiffs further alleged that the defendant was interfering with such use by placing rocks and boulders on the area in question. The plaintiffs seek a judgment vesting title to this piece of property in them, and also money damages.
There was testimony that the defendant's total property was approximately 31,600 square feet, roughly three-quarters of an acre.
The defendant denied the material allegations of the complaint, and the matter was referred to Attorney Steven A. Certilman, an attorney trial referee, pursuant to General Statutes § 52-434(a)(4) and Practice Book § 19-2A. The referee conducted a trial and submitted a report on April 7, 2003, containing his factual findings, conclusions and recommendations as required by Practice Book § 19-8.
General Statutes § 52-434(a)(4) provides in relevant part that: "the Chief Justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as the Chief Justice may from time to deem advisable or necessary."
Practice Book § 19-2A provides: "The court or judicial authority may refer to an attorney trial referee any civil nonjury case in which the issues have been closed, provided that the appearing parties or their counsel consent to the referral."
The defendant objected to the format of the attorney trial referee report because it did not contain numbered paragraphs, but the report set forth the facts on which the referee relied, his conclusions and his recommendations and is accepted by the court on the basis that the format used by the referee is satisfactory. Practice Book § 19-8(a).
The attorney trial referee made the following factual findings: (1) although the portion of land that is in dispute is on the defendant's property, this area was used as a backyard and a parking area by the plaintiffs and their predecessors in title, Robert and Agnes Symington, Mrs. DeSiena's parents, beginning in 1961, when the Symingtons purchased the property at 8 Cornwall Drive; (2) the Symingtons paved a portion of CT Page 8696 the parking area in the disputed property in the early 1970s; (3) the Symingtons, and then their daughter and her husband, Charles L. DeSiena, who acquired the property in 1989 from the Symingtons, continued to maintain the back yard portion of the disputed area in the early 1970s by planting gardens and mowing and maintaining the lawn; (4) a next door neighbor testified very credibly and "in a highly persuasive" manner that the Symingtons and the DeSienas had used the subject parcel as their own since the early 1970s; (5) the testimony of a professional land surveyor described the boundaries of the parcel in dispute sufficiently to indicate the dimensions thereof; (6) no person, including the defendant, ever challenged the plaintiffs' or the Symingtons' use of the portion of land in issue; (7) the defendant purchased his property on November 1, 1999, and did not offer any evidence contradicting that submitted by the plaintiffs regarding their use of the subject parcel; (8) the area in question is visible and the plaintiffs' presence there was readily ascertainable by the defendant or his predecessors; and (9) after obtaining a survey in 2000, and learning that the parcel in question was on his property, the defendant in 2001 dropped a boulder and a mound of dirt, rocks and debris on the subject parcel.
Lillian Tyska, the next-door neighbor who lived in her house for approximately the last forty years, testified that the Symingtons and the DeSienas "maintain[ed] that property all these years. And they really beautified the property and it was useless property. There was no one using it."
Based on these findings of fact, the attorney trial referee concluded that (1) the plaintiffs had proved, by clear and convincing evidence, that first the Symingtons and then the DeSienas used the land in question as if they owned it; (2) by reason of "tacking" or adding the DeSiena's use of the disputed parcel to the use thereof by the Symingtons, the plaintiffs established an uninterrupted and continuous possession that well exceeded fifteen years; (3) the plaintiffs, and before them the Symingtons, possessed the parcel under a claim of right based on their belief that the disputed land belonged to them; (4) the use of the disputed parcel was not based on the consent of the defendant or his predecessors; (5) the use of the parcel was open and readily visible from the defendants' property; and (6) the plaintiffs were entitled to nominal damages of $500 for the damages to the bushes and lawn on the subject parcel caused by the defendant's actions in placing a boulder and other objects thereon.
The attorney trial referee recommended that judgment enter vesting title to the disputed property in the plaintiffs, plus $500, as indicated above. Thereafter, as authorized by Practice Book § 19-14, the defendant filed objections to the referee's report and recommendations which may be summarized as follows: (1) the chain of title had not been properly established; (2) the surveyor should not have been allowed to testify as an expert; (3) the plaintiffs' possession was not "open and visible," and (4) the plaintiffs had failed to prove the necessary "intent" on their part to commit a wrongful act. CT Page 8697
Practice Book § 19-14 provides: "A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the . . . attorney trial referee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted."
Practice Book § 19-17(a) involves the function of this court in reviewing reports of attorney trial referees and provides: "The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the . . . attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another . . . attorney trial referee . . . for a new trial or revoke the reference and leave the case to be disposed of in court."
"[T]he trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report." (Internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001). Second, the court must insure that the report does not contain "legal conclusions for which there are no subordinate facts." (Internal quotation marks omitted.) Id. Third, the report must be reviewed to determine if it is "legally and logically correct." (Internal quotation marks omitted.) Id., 103.
Other principles governing attorney trial referee reports provide that "[a] reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court . . . or the Superior Court reviewing the findings of attorney trial referees." (Citations omitted.) Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). A fact finder's recommendations should be accepted when "there is nothing that is unreasonable, illogical or clearly erroneous in the findings of the fact finder and the reasonable inferences that may be drawn therefrom." Id., 425.
"The factual findings of a [trial referee) on any issue are reversible only if they are clearly erroneous . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Shapero v. Mercede, 262 Conn. 1, 6, 808 A.2d 666 (2002).
In contrast, "because the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect . . . [T]he legal opinions of [an attorney trial referee], like those of the CT Page 8698 parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment." (Internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 202, 819 A.2d 227 (2003).
"The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney [referee] . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney referee]." (Internal quotation marks omitted.) Mitchell v. Guardian Systems, Inc. 72 Conn. App. 158, 162, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). "[T]he trial court cannot accept an attorney trial referee's report containing legal conclusions for which there are no subordinate facts." (Internal quotation marks omitted.) Killion v. Davis, supra, 257 Conn. 102.
The criteria for adverse possession are well recognized. "[T]o 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 . . .
"A finding of adverse possession is 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 it 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." (Citations omitted; internal quotation marks omitted.) Allen v. Johnson, 79 Conn. App. 740, 744-45, 831 A.2d 282, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003.)
Adverse possession does not require a "physical eviction, but a possession attended by such circumstances as to evince a claim of exclusive right and title, and a denial of the right of the other tenants to participate in the profits . . . It is enough if the disseizor enters into and holds possession of the land as if it was his own." (Citations omitted.) Miller v. State, 121 Conn. 43, 49, 183 A.17 (1936).
"In general, exclusive possession can be established by acts, which at CT Page 8699 the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others . . . Thus, the claimant's possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner's use." (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 502, 442 A.2d 911 (1982). "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.) Id., 502-03.
"It is true . . . that it is not essential to the establishment of title by adverse user that a claim of ownership be made; title may be acquired even though the possessor knows that he is occupying wholly without right; all that is necessary to prove is that there was a user as of right, that is, one in disregard of any rights of the holder of the legal title . . . It is, however, true that the intent of the possessor to use the property as his own must be shown. This issue involves an inquiry into his mental condition." (Citations omitted; internal quotation marks omitted.) Horowitz v. F.E. Spencer Co, 132 Conn. 373, 378-79, 44 A.2d 702 (1945).
As to the objections to the attorney trial referee's report, the first concerns proof of the chain of title to 8 Cornwall Drive. The plaintiffs did not produce a complete deed to the former owners, the Symingtons, the plaintiffs' immediate predecessors in title, now deceased, as the attestation clause was left off by the town clerk. On the other hand, the referee heard testimony from Mrs. DeSiena and a next door neighbor concerning occupancy of the premises by the Symingtons and then by the DeSienas from the early 1960s on. Additionally, there was a great deal of testimony that the Symingtons owned their property since the early 1960s. Thus, the defendant was not prejudiced by admission of the two certified pages of the deed without the third and final pages even if an error had occurred in the admission into evidence of those two pages. Moreover, the defendant did not object to the admission of several deeds from the Symingtons and/or Mr. Symington indicating that he was the owner of 8 Cornwall Drive.
The second objection invokes Practice Book § 13-4(4) regarding disclosure of expert witnesses. The testimony of a licensed land surveyor, who was not disclosed as an expert, pertaining to the location and size of the disputed parcel was admitted. However, this witness did not give his opinion as to whether the plaintiffs had acquired title by means of adverse possession. He merely described the boundaries of the CT Page 8700 disputed parcel, not what activities were conducted thereon or by whom. The plaintiffs also point out that they had forwarded the witness' survey to the defendant many months prior to trial. Furthermore, the parties had discussed the survey at a pretrial held in this court several months prior to the actual trial. The attorney trial referee determined that this constituted "de facto" or "substantial" disclosure of the witness who, the referee added, simply "highlighted" the area that is in dispute. Moreover, the referee determined that the defendant was not prejudiced by the testimony of this witness, that the testimony did not interfere with the orderly progression of the trial, and that the plaintiffs did not act in bad faith in failing to disclose this alleged expert.
The defendant also objects to the report on the grounds that the plaintiffs had failed to prove that their use of the parcel was "open and visible." The defendant claims that the terrain between his house and the disputed parcel was densely wooded and blocked by a hill. However, the referee found that the disputed parcel was within clear view of the defendant's property. When asked if activities on the subject land were visible from the defendant's home, the surveyor testified in the affirmative.
Question: "If you were standing on what you have marked the driveway encroachment could you see Mr. Filippidis' house?" Answer "Yes." "Question: "You could see his house?" Answer "Yes." Question: "What parts of that house could you see?" Answer. The back. The back of his house." Question: "Could you see the foundation of the lower part of the house?" Answer "I believe you could probably see the whole back of the house, yeah. The foundation." Question: "The land and the building?" Answer "Yes." Question: "Now at the time that you took — is it your testimony that you see the house and the property in September, is that correct?" Answer "Yes." Question: "When there is foliage on the property?" Answer "Yeah. Yeah, but where this is, you know, you have a pretty clear shot. I remember that because I ran a baseline all the way out to Ponus Avenue, right by his house."
The defendant in his final objection alleges that the plaintiffs did not prove that they and the Symingtons intended to oust the defendant from ownership of the parcel in question. The referee found that the use of the disputed land was "hostile" in the sense that the plaintiffs and the Symingtons believed the parcel in issue belonged to them and their "use of the property was under a claim of right." Lisiewski v. Seidel, 72 Conn. App. 861, 873, 866 A.2d 1121, cert. denied, 262 Conn. 921, 812 A.2d 865 (2002).
It is evident that this case turns on the credibility of witnesses, particularly that of Laurita DeSiena. Mrs. DeSiena testified that she had lived at 8 Cornwall Drive between 1961 and 1970 and then again starting in 1988, and that between 1970 and 1988 she visited her parents' home very frequently. She further testified that the subject parcel had been used by her parents and herself, and subsequently by her husband, since 1961. It is equally evident that the attorney trial referee chose to believe the testimony offered by this plaintiff regarding the history and use of the parcel in question. In relying on the testimony from Mrs. DeSiena and the next door neighbor, a Mrs. Tyska, the referee was acting within the scope of his authority. "In making this explicit factual determination, the attorney trial referee implicitly found certain witnesses to be credible and believable in their testimony. This was precisely his function as a fact finder." Griffin v. Planning Zoning Commission, 30 Conn. App. 643, 652, 621 A.2d 1359 (1993). "The finder of CT Page 8701 fact is in a better position to determine the credibility of witnesses and the weight to be accorded their testimony." Beizer v. Goepfert, 28 Conn. App. 693, 706, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S.Ct 1416, 122 L.Ed.2d 786 (1993). "Where there is conflicting evidence . . . we do not retry the facts or pass on the credibility of the witnesses . . . The probative force of conflicting evidence is for the trier to determine." (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 179, 786 A.2d 1171 (2001).
The court concludes that the plaintiffs have proven by clear and convincing evidence that they obtained ownership of the parcel of land in dispute by way of adverse possession. The 15-year period of adverse possession began in the early 1970s at a minimum, and was satisfied at least by 1990, well before the defendant acquired title to his property. Since the attorney trial referee found as a fact that the Symingtons and then their daughter and her family, used and maintained the disputed area openly and visibly under a claim of right, and did so with an intent to use the parcel exclusively, a case of adverse possession has been established.
In summary, the plaintiffs have met their burden of proof relative to their claim for adverse possession by clear and convincing evidence. The court finds that the defendant has failed to demonstrate any legally sufficient defenses to the plaintiffs' adverse possession claims. Thus, the report of the attorney trial referee recommending that title to the parcel in issue be found in favor of the plaintiffs is accepted and judgment enters in accordance with said report in favor of the plaintiffs.
Court costs are to be taxed in favor of the plaintiffs by the clerk of this court in accordance with General Statutes § 52-257 and Practice Book § 18-5.
William B. Lewis, Judge, TR