JANE C. DOWLING v. HEIRS OF NORMAN J. BOND ET AL.
(SC 20665)
Supreme Court of Connecticut
October 18, 2022
Robinson, C. J., and McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
***********************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
***********************************************
Syllabus
The plaintiff landowner sought to quiet title to an abutting parcel of real property, to which the defendant O Co. held record title. The plaintiff’s shorefront property, which was located on a peninsula protruding into Long Island Sound, had been owned by the B family for nearly seventy-five years before the plaintiff purchased it. The deed conveying the property to the plaintiff identifies the abutting parcel, which is forty feet wide and bound to the south by Long Island Sound, as a right of way. O Co., a nonprofit organization formed to promote the interests of certain property owners on the peninsula, had acquired title to the parcel and other rights of way to the shoreline in the 1970s. The plaintiff and her husband, during their plans to expand the house on the property, began to investigate the property’s prior ownership and retained various attorneys, including M, to research whether the B family had acquired title to the parcel by adverse possession and to pursue that claim. M recommended that the plaintiff file a notice of her claim of adverse possession on the land records pursuant to a provision (
- The trial court improperly required the plaintiff to establish, as a threshold matter in proving her claim of adverse possession, that she or her predecessors in title had clearly and unequivocally repudiated their right by deed to pass over the parcel:
The repudiation doctrine, which recognizes that, when an original entry on land is by permission of the owner or under some right or authority derived from the owner, the possession of the land does not become hostile until the permission or authority has been clearly repudiated by the occupant, did not apply under the circumstances of the present case, as the authorities suggested that, when the right to use land for a particular purpose is conferred by deed, and the claimant has used the land for some other purpose that is more extensive than the right conferred by the deed, the use may be considered hostile and give rise to a claim of adverse possession.
In the present case, the plaintiff claimed that she or members of the B family used the parcel for purposes for which they did not have permission, either by license or by deed, and that their use in such a manner was sufficiently open, hostile and notorious to give notice to O Co. of a claim of adverse possession, and that was all the law required.
- Notwithstanding the trial court’s improper application of the repudiation doctrine, that court correctly determined that the plaintiff had failed to establish the elements of adverse possession:
- The plaintiff could not prevail on her claim that the trial court improperly had required her to establish, in order to satisfy the element of adverse possession that she used the parcel under a claim of right, that she and her predecessors in title had the subjective intent to use the parcel as owners, rather than establishing only that they engaged in acts that objectively evinced such an intent:
This court’s cases make clear that the party claiming adverse possession must show his or her intent to use the property as his or her own and that that issue involves an inquiry into that individual’s mental condition.
Accordingly, the trial court correctly determined that the plaintiff was required to prove that she and members of the B family subjectively intended to use the parcel as their own in order to establish her claim of adverse possession.
- The trial court’s conclusion that the plaintiff failed to establish the elements of adverse possession was not so inextricably intertwined with its incorrect application of the repudiation doctrine that it could not stand as an independent ground for affirmance, as the evidence in the record supported each of the trial court’s findings that formed the basis of its rejection of the uses that, according to the plaintiff, established adverse possession of the parcel:
The B family made no assertion of ownership to the parcel in the various governmental permit applications that they submitted when repairing the seawall, and they shared the expense of those repairs with neighbors, indicating that they were not acting under a claim of ownership.
The limited evidence regarding the septic system, including a memorandum from O Co. stating that its members could install septic systems in the rights of way, suggested a permissive use, and the septic system was underground and, thus, was not a visible or notorious use of the parcel.
The evidence demonstrated that the members of the B family were aware that they did not own the parcel and understood that O Co. could remove the trees they had planted on the parcel if the trees interfered with the right of way, the B family used the gravel parking area that encroached on the parcel only when they hosted large gatherings, which was not inconsistent with O Co.’s use of the parcel or the manner in which other owners of property abutting the rights of way leading to the shoreline used the rights of way, and the birdbath that was installed on the parcel, which was only thirty-six inches in diameter, was not a substantial structure that could give rise to a claim of adverse possession of the entire parcel.
Historical evidence showed that the heirs of the individual who originally subdivided the properties on the peninsula and O Co.’s predecessor had expressed an intent to maintain the rights of way for the benefit of the community of property owners in the development, and the trial court found no evidence that members of the B family had acted in a way that was inconsistent with their easement over the parcel, that their conduct with respect to the parcel was dissimilar to the conduct of other shorefront lot owners with respect to rights of way abutting their properties, or that they had acted in a way inconsistent with the prevailing community spirit on the peninsula, such that their activities did not evince an intent to use the property as their own.
Accordingly, although the plaintiff was not required to establish that her predecessors in title had repudiated their right by deed to pass over the parcel in order to establish adverse possession, she was required to establish that any more extensive use of the parcel was not impliedly permitted, which she failed to do, and the trial court’s legal error regarding the repudiation doctrine could not have impacted its conclusion that the plaintiff had failed to establish adverse possession.
- The plaintiff could not prevail on her claim that the trial court improperly had required her to establish, in order to satisfy the element of adverse possession that she used the parcel under a claim of right, that she and her predecessors in title had the subjective intent to use the parcel as owners, rather than establishing only that they engaged in acts that objectively evinced such an intent:
- O Co. failed to demonstrate, as a matter of law, that the plaintiff had acted with malice when she filed notice of her claim of adverse possession on the land records, the trial court therefore incorrectly determined that she slandered O Co.’s title, and, accordingly, this court reversed in part the trial court’s judgment and remanded the case with direction to render judgment for the plaintiff on that portion of O Co.’s counterclaim alleging slander of title under
§ 47-33j :The plaintiff’s notice of claim was premised on an incorrect legal theory that had been endorsed by her attorneys, namely, that she could establish adverse possession by showing that she and her predecessors in title had used the parcel in a manner that objectively evinced their intent to own it, regardless of their subjective beliefs regarding actual ownership, and, although M and the plaintiff’s other attorneys were incorrect regarding that legal proposition, the malice necessary for slander of title does not exist when the offending party’s actions rest on a rational but incorrect interpretation of the law.
In the present case, the fact that the plaintiff’s attorneys were incorrect with respect to their interpretation of the law did not mean that their position was so irrational that no reasonable attorney could propound it, as they relied on this court’s own case law, albeit case law that has since been overruled, and a number of other jurisdictions employ the rule urged by the plaintiff’s attorneys.
Accordingly, although the plaintiff’s claim of adverse possession was weak, both factually and legally, the claim was at least colorable in light of her mistaken but not entirely unreasonable position that she was not required to establish that her predecessors in title had any subjective intent to use the land as their own.
Although evidence of a bad or corrupt motive or an intent to inflict harm is not required to establish a claim of slander of title under
§ 47-33j , lack of such a motive or intent may be probative, and, in the present case, the plaintiff had nothing to gain by recording a notice of a knowingly false claim, and her sole motive in recording the notice was to prevent her adverse possession claim from being extinguished by operation of the Marketable Title Act.Insofar as this court determined that O Co. could not prevail on its slander of title claim under
§ 47-33j , O Co. was not entitled to attorney’s fees and costs pursuant to that statute, and, accordingly, this court vacated the trial court’s award of attorney’s fees and costs.
Argued March 30—officially released October 18, 2022
Procedural History
Action for a declaratory judgment to determine the rights of the parties to a certain parcel of real property, brought to the Superior Court in the judicial district of New London, where the defendant The Old Black Point Association, Inc., filed a counterclaim; thereafter, the court granted the motion to bifurcate the issues of liability and damages filed by the defendant The Old Black Point Association, Inc.; subsequently, the case was tried to the court, Hon. Emmet L. Cosgrove, judge trial referee; judgment for the defendant The Old Black Point Association, Inc., on the complaint and the counterclaim; thereafter, the court, Hon. Emmet L. Cosgrove, judge trial referee, granted the motion for costs filed by the defendant The Old Black Point Association, Inc., and the plaintiff appealed. Reversed in part; vacated in part; judgment directed.
Wesley W. Horton, with whom were Louis B. Blumenfeld and, on the brief, Brendon P. Levesque and Lorinda S. Coon, for the appellant (plaintiff).
Timothy D. Bleasdale, with whom were Edward B. O’Connell and Tracy M. Collins, for the appellee (defendant The Old Black Point Association, Inc.).
DOWLING v. HEIRS OF BOND
Opinion
We conclude that the trial court correctly determined that the plaintiff had failed to establish ownership of the parcel by adverse possession but that it incorrectly determined that the defendant had established its counterclaim for slander of title. Accordingly, we affirm the judgment in favor of the defendant on the plaintiff’s quiet title action and reverse the judgment in favor of the defendant on its counterclaim for slander of title.
The following facts were found by the trial court or are undisputed. In 2006, the plaintiff purchased property located at 287 Old Black Point Road in East Lyme (property) from John M. Bradley, Scott Bradley and Anne Bradley Davis (collectively, Bradley siblings) for $2.6 million. The deed to the property, which is located on a peninsula protruding into Long Island Sound known as Old Black Point, indicates that it is bounded on the north by Avenue A, on the east by “a [right of way forty] feet wide,” on the south by Long Island Sound and on the west by “land now or formerly of Annette Hills Olds . . . .”
The defendant is a nonprofit organization formed “[t]o promote social, recreational, cultural and athletic activities of owners and occupants of property in Old Black Point . . . .” During negotiations for the sale of the property by the Bradley siblings to the plaintiff, representatives of the defendant met with the plaintiff’s son, Vincent Dowling, Jr. (Dowling Jr.), to discuss the forty foot right of way that forms the easterly boundary of the property (parcel).3 The defendant’s representatives advised Dowling Jr. that the defendant had acquired title to the parcel in the 1970s, along with other rights of way running from Avenue A to the shoreline, several of which ran through a seventy-five foot right of way or “reservation” running along the shoreline.4
The defendant was interested in enforcing a parking ban on all of the rights of way and, to this end, wanted Dowling Jr. to reconfigure a gravel parking area for the property that encroached on the parcel. The defendant and Dowling Jr. also had a discussion about removing some trees that had been planted along the northern boundary of the parcel and who would be responsible for maintaining the parcel, including the portion of a seawall that runs along the parcel’s southern boundary.5 Dowling Jr. informed Scott Bradley of the substance of the meeting and requested that the Bradley
On January 16, 2006, Scott Bradley sent an email to the defendant’s board of governors asking the defendant to “consider less drastic measures” than those discussed with Dowling Jr.6 He pointed out that the Bradley family had owned the property for almost seventy-five years and had always used a portion of the parcel for parking; that, in 1998, it had split the cost to repair the portion of seawall abutting the parcel with the owner of the adjoining property; and that the trees had been on the parcel for thirty years. Scott Bradley suggested that, in light of his family’s historic use of the parcel, the doctrine of adverse possession might present “legal issues . . . not favorable to the approach [that the defendant] is currently pursuing.”
The Bradley siblings ultimately agreed to reduce the purchase price of the property by $68,000 “in lieu of resolving the issues relating to . . . [the location of] the driveway and the [condition of the] seawall . . . .” In a “comprehensive title affidavit” provided to the plaintiff at the closing, the Bradley siblings’ representative by power of attorney asserted that “a portion of a gravel drive and parking area [located on the property] . . . encroaches onto a right of way owned by another.” The property was conveyed to the plaintiff by a warranty deed that was recorded in the East Lyme land records on March 24, 2006.
Thereafter, the plaintiff and her husband, Vincent Dowling, Sr. (Dowling Sr.), made plans to renovate and expand the house on the property. Their architect informed them that they could not expand the house in an easterly direction because of its close proximity to the parcel’s western boundary.
After searching the East Lyme land records, probate records, and other records pertaining to the ownership of the property, Dowling Sr., who is a retired attorney, sent an email to Dowling Jr. on January 8, 2007, stating that there was “no basis for the assertion that the [defendant] has a legal interest in the [parcel].” Rather, Dowling Sr. believed that the activities of the plaintiff’s predecessors in title over the preceding seventy-five years had resulted in the acquisition of title by adverse possession. Those activities included (1) the restoration
of the portion of the seawall abutting the parcel after the 1938 hurricane, (2) the installation of the driveway and parking area that encroached on the parcel, (3) the installation of a birdbath on the parcel, (4) the installation of a septic system, part of which was located under the parcel, (5) the planting of trees across a portion of the parcel’s northern boundary, and (6) the mowing and maintenance of the parcel.
Apparently, after conducting additional research, Dowling Sr. learned that attorney Robert W. Marrion had conveyed certain ownership interests in the rights of way on Old Black Point to the defendant by way of a deed dated December 22, 1977. On February 8, 2007, Dowling Sr. sent Dowling Jr. an email stating that, for a variety of reasons, the defendant’s position that it owned the parcel by virtue of this deed “border[ed] on the ludicrous.”7
On September 14, 2007, Grandjean sent a letter to Dowling Sr. regarding a meeting that he had had with the defendant’s attorney, Granville Morris. Grandjean indicated that Morris had provided a packet containing some of the defendant’s meeting minutes and correspondence referring to the parcel. The packet included what Grandjean characterized as “some troubling correspondence signed by both Stephen Bradley and Anne Bradley in the early 1970s regarding trees they erected on the [parcel].”8 It also included minutes showing that Anne Bradley, who had been on the defendant’s board of governors, had participated in discussions regarding the rights of way in the 1970s.
Several months later, Grandjean wrote another letter to Dowling Sr., inquiring whether he should commence litigation over the ownership of the parcel. He indicated that he would be willing to do so if Dowling Sr. had “a realistic view of the factual ‘warts’ [that] exist in the case . . . .” In response to a request by Dowling Sr. that he identify the “potential stumbling blocks” to a successful resolution of the dispute over ownership of
the parcel, Grandjean sent another letter indicating that he had concerns about whether the “adverse” element of adverse possession could be established when it was clear that, at the time that the land was initially subdivided in 1886, “the original landowner intended to convey, in perpetuity, a limited right to the [parcel] to [the plaintiff’s] predecessor in title.” Grandjean was also concerned that the court would impute knowledge of the defendant’s ownership of the parcel to Anne Bradley as the result of her membership in the defendant’s board of governors in the 1970s, when the defendant was acquiring title to the rights of way. Grandjean further stated that the Bradley siblings had indicated “that they knew the strip [containing the right of way] was there—they just thought it was far narrower than it turned out to be.”
On January 19, 2009, Eunice Groark, the president of the defendant’s board of governors,
Thereafter, the plaintiff retained Attorney Dwight H. Merriam of the law firm of Robinson & Cole, LLP, to pursue her claim to ownership of the parcel. In turn, Merriam retained Attorney Richard S. Johnson to conduct a title search of the parcel. On December 2, 2010, Merriam provided Dowling Sr. with a draft memorandum indicating that there was a “risk” that the defendant would rely on the Marketable Title Act (MTA),
on the land records “during or prior to 2016” to ensure that the claim was not extinguished. (Emphasis omitted.) On August 9, 2011, Merriam wrote a ten page, single spaced letter addressed to the plaintiff, in which he analyzed the factual and
Thereafter, the plaintiff brought this quiet title action, alleging in the operative complaint that her predecessors in title had used and possessed the parcel for more than fifteen years in an open, visible, notorious, adverse, exclusive, continuous and uninterrupted manner such that the predecessors in title, and through them, the plaintiff, had acquired title to the parcel. The defendant denied the plaintiff’s claim and raised the following special defenses: (1) the parcel is a right of way shared in common with others, and, therefore, the plaintiff’s use of the property was not exclusive; (2) even if the plaintiff and her predecessors adversely possessed the parcel, title to the parcel was extinguished by the defendant’s adverse possession of the parcel for more than fifteen years following the period of adverse possession claimed by the plaintiff; (3) the plaintiff’s use of the parcel was permissive; (4) if the plaintiff’s predecessors acquired title by adverse possession, her title was extinguished pursuant to the MTA because her interest was not asserted within forty years following the recording of the deeds from Bond’s heirs to Marrion conveying their interest in the parcel; and (5) any interest of the plaintiff’s predecessors in the parcel was extinguished because it was an unrecorded interest predating the effective date of the MTA and was not recorded on the land records during the statutory two year grace period between July 1, 1969, and July 1, 1971. In addition, the defendant filed a counterclaim, asserting that (1) the defendant had acquired marketable record title to the parcel under the MTA, and (2) the plaintiff committed the statutory tort of slander of title under
attorney’s fees and costs pursuant to
With respect to the issue of whether the defendant had record title to the parcel, the court concluded that the parcel was not included in the 1886 deed transferring the property from Bond’s estate to How but that the deed granted an easement over the parcel, the boundaries of which were marked by merestones. The court further found that, “[b]y virtue of a distribution from [Bond’s] estate . . . in 1926, the fee title to the rights of way . . . [on] Old Black Point, including the parcel, was to the eight heirs of . . . Bond.” In the mid-1970s, Marrion, acting as trustee for the defendant, contacted the Bond heirs and secured quitclaim deeds conveying their interests in the rights of way to him, as trustee. Eleven deeds were recorded on November 21, 1975, and the twelfth and final deed was recorded in January, 1976. The trial court found that Marrion had obtained quitclaim deeds from all of Bond’s heirs. On December 23, 1977, Marrion conveyed his interest in the fee title to the rights of way, including the parcel, to the defendant by quitclaim deed. Accordingly, the trial court concluded that the defendant held record title to the parcel.
The trial court then addressed each of the specific uses of the property that, according to the plaintiff, supported her claim of adverse possession, beginning with the plaintiff’s claim regarding the repair of the portion of the seawall adjacent to the parcel after the 1938 hurricane.15 The court noted that, shortly after the hurricane, the board of directors of the
how the hurricane had destroyed ten to thirty feet of the seventy-five foot reservation in front of the shorefront properties. The letter indicated that the owners of the shorefront properties were working together to build a seawall and to rebuild the lawn “at individual expense.” The letter also indicated that this was being done to “protect the property and [to] preserve the beauty of [Old Black] Point—and consequently will inure to the benefit of all.” The trial court found that Mary Tremaine Bradley16 and the owner of the neighboring property to the west—which did not abut the parcel—shared the cost of repairing or replacing the seawall in front of their respective properties and in front of the parcel. In addition, the trial court found that continuing the seawall in front of the parcel was necessary to protect Mary Tremaine Bradley’s property.
With respect to the evidence that Stephen Bradley and Anne Bradley had repaired the seawall in front of the parcel in the late 1990s, the trial court noted that the engineer who was handling the application to perform the repairs asked Anne Bradley who owned the parcel, but there was no evidence of any response. On March 11, 1997, the engineer wrote to the defendant indicating that the Bradleys had applied to various government entities for permission to repair the seawall, including the portion abutting the parcel. He further indicated that the ownership of the parcel was unclear but that either the town of East Lyme or the defendant was the “most probable owner,” and he requested that the defendant provide a “letter of endorsement” for the proposed project. A copy of the engineer’s letter was sent to the Bradleys. On March 16, 1997, the defendant provided the requested endorsement in writing. The trial court found that the cost of this repair in front of the parcel was shared by the Bradleys and the owners of the shoreline property abutting the Bradleys’ property to the west.
The trial court concluded that the plaintiff had failed to establish by clear and convincing evidence that the repairs to the seawall in 1938 and the 1990s put the Bond heirs or the defendant “on notice of a repudiation of their ownership of the fee [to the parcel] or that an adverse possession claim was initiated or continuing.” In addition, the court concluded that, because all of the shorefront property owners had repaired the portions of the seawall located on the rights of way abutting their respective properties after the 1938 hurricane, and because the cost of constructing and repairing the seawall adjacent to the parcel had been shared by the plaintiff’s predecessors in title and their neighbors in both 1938 and the 1990s, the evidence did not establish that the plaintiff’s predecessors in title had asserted a claim of ownership over the parcel.
The court then addressed the plaintiff’s claim that the installation of a septic system leaching field by her
predecessors in title supported her claim of adverse possession to the parcel. The court found that a portion of the existing septic system for the plaintiff’s property lies partly under the parcel. The court then noted that the defendant had sent a memorandum to all of its members in 1964 addressing the sanitation “situation” on Old Black Point. The memorandum stated that septic systems
The court also rejected the plaintiff’s claim that the fact that Stephen Bradley and Anne Bradley had planted several evergreen trees or shrubs across a portion of the entrance to the parcel in 1971 supported their claim of adverse possession. The evidence showed that the defendant initially had objected to the plantings. The Bradleys responded by stating that their “sole intent in planting the shrubs was to establish some means of controlling the proper use of the [right of way] and at the same time [to] have the area look reasonably attractive,” and offered to make a gift of the plants to the defendant so that it could remove them when it chose. The defendant declined this offer because neither the Bradleys nor the defendant owned the parcel at the time.17 Ultimately, the defendant’s board of governors decided by vote that it would allow the plants to remain but would remove them “at any time in the future when they interfere with the [right of way].” Stephen Bradley was present at the meeting when this vote was taken. The trial court concluded that this evidence did not support a finding “of a repudiation by the Bradleys of the Bond ownership of the parcel” or that the planting of the trees was “an open, adverse, notorious use under a claim of right by the Bradleys to assert that they owned the fee to the parcel . . . .”
With respect to the plaintiff’s claim pertaining to the Bradley family’s use of a gravel parking area on the parcel adjacent to the property’s driveway, the trial court found that the evidence showed that the Bradleys had not used the area for parking on a daily basis, but
only when there were larger family gatherings, and that other property owners in Old Black Point likewise used the rights of way adjacent to their lots for similar purposes. The court also noted that, in exchange for a reduction in the purchase price of $68,000, the plaintiff had agreed to reconfigure her driveway and parking area so that the parking area was located on her property and the driveway was located on the parcel, consistent with her right to pass and repass. The court concluded that this use did “not provide clear, positive, and unequivocal evidence of repudiation or of adverse possession.”
Finally, the trial court addressed the plaintiff’s claim pertaining to the maintenance of the lawn on the parcel and the installation of a birdbath. The court concluded that, prior to 2006, the shorefront property owners had retained one or two landscaping contractors to mow the entire lawn in front of the properties, including the rights of way and the seventy-five foot
The trial court next considered whether the Bradley siblings had intended to convey title to the parcel when they sold the property to the plaintiff. The court found that the deed conveying the property to the plaintiff expressly provided that it conveyed an easement over the parcel and that the property did not include title to the fee.18 In addition, the title affidavit provided by the Bradleys’ representative at the closing expressly stated that “a portion of a gravel drive and parking area . . . encroaches onto a right of way owned by another.” On the basis of this evidence, the court concluded that the Bradley siblings did not intend to convey a fee title.
On the basis of these subsidiary findings, the trial court concluded that the plaintiff had failed to establish that her predecessors in title had repudiated their permissive use. The court further concluded that, even if proof of repudiation were not required, the plaintiff had failed to establish her claim of adverse possession. The court therefore found in favor of the defendant on both the plaintiff’s quiet title claim and the defendant’s quiet title counterclaim. In addition, the court concluded that, because the plaintiff’s notice of claim was filed more
than forty years after the date that eleven out of the twelve deeds conveying the interests of Bond’s heirs in the parcel to Marrion were filed, which deeds represented seven-eighths of the heirs’ interests, the notice had no effect under the MTA.
The trial court then turned to the defendant’s slander of title counterclaim and concluded that the defendant established that the plaintiff had filed her notice of claim on the land records “with a reckless disregard for its truth and for the purpose of slandering the defendant’s title to the fee.” In support of this conclusion, the trial court relied on substantially the same evidence that it relied on to support its ruling on the plaintiff’s quiet title claim, in addition to evidence concerning the dealings between the parties during the period preceding the plaintiff’s filing of the notice of claim. The court determined that this evidence established that the plaintiff and Dowling Sr. were aware at the time they filed the notice that the defendant had record title to the parcel and that they knew or should have known that “there was no basis for the plaintiff’s claim that her predecessors in title intended to convey any adverse possession claims to the fee of the parcel.” The court also found it significant that Dowling Sr. had not provided Merriam with the title affidavit indicating that the parcel was owned by another or Grandjean’s letter outlining the “stumbling blocks” to the plaintiff’s adverse possession claim, and also had not
After conducting an evidentiary hearing on damages, the trial court found that the defendant was entitled to damages for attorney’s fees of $338,542.50 and costs of the litigation in the amount of $44,876.33 pursuant to
This appeal followed. The plaintiff claims on appeal that (1) the trial court applied an incorrect standard when it required the plaintiff to establish that she had repudiated her right by deed to use the parcel as a right of way, (2) because the trial court’s conclusion that the plaintiff had failed to establish the elements of adverse
possession was inextricably intertwined with its incorrect application of the repudiation doctrine, that conclusion was also incorrect, (3) the trial court incorrectly determined that the plaintiff’s predecessors in title did not convey the parcel to her, (4) the trial court incorrectly determined that, for purposes of the MTA, the eleven deeds from Bond’s heirs to Marrion that were recorded in the East Lyme land records in November, 1975, constituted root of title because the twelfth deed, representing a one-eighth interest in the parcel, was not filed until January, 1976, less than forty years before the plaintiff filed her notice of claim, (5) the trial court incorrectly determined that the defendant had established its claim of statutory slander of title when the defendant failed to plead and prove pecuniary damages, (6) the trial court’s determination that the plaintiff slandered the defendant’s title to the property and that she was not entitled to an advice of counsel defense was erroneous, and (7) the trial court incorrectly determined that the defendant was entitled under
With respect to the plaintiff’s first claim, we agree with the plaintiff that the trial court improperly required her to establish that she had repudiated her right by deed to use the property as a right of way. We also conclude, however, that, contrary to the plaintiff’s second claim, the trial court correctly determined that the plaintiff failed to establish her claim of adverse possession. Accordingly, we need not reach the plaintiff’s third and fourth claims. With respect to the plaintiff’s sixth claim, we agree with the plaintiff that the trial court incorrectly determined that the defendant had established its slander of title claim. We therefore need not reach the plaintiff’s fifth and seventh claims.
I
The plaintiff first claims that the trial court applied an incorrect standard when it required her to establish, as a threshold
doctrine does not apply on the facts of this case, in which the right to use the land in a particular way was conferred by deed and in which the plaintiff contends that she used the land in a more extensive way that satisfies the standard requirements of adverse possession.
The general legal principles governing adverse possession are well settled.20 When “title is claimed by adverse possession, the burden of proof is on the claimant. . . . 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. . . . The use is not exclusive if the adverse user merely shares dominion over the property with other users. . . . Such a possession is not to be made out by inference, but by clear and positive proof. . . . In the final analysis, whether possession is adverse is a question of fact for the trier. . . . The doctrine of adverse possession is to be taken strictly.” (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 498–99, 442 A.2d 911 (1982); see Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 780, 890 A.2d 645 (2006) (“[adverse] possession is not to be made out by inference, but by clear and convincing proof” (internal quotation marks omitted)).
The inquiry is necessarily fact specific and context dependent. “In evaluating such claims, [t]he location and condition of the land [at issue] must be taken into consideration and the alleged acts of ownership must be understood as directed to those circumstances and conditions. . . . Additionally, in assessing whether hostility exists, the relation that the [alleged] adverse possessor occupies with reference to the owner is important.” (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 775. “In sum, when determining whether the necessary elements of adverse possession exist, each claim must be decided on its own particular facts. The requirements vary according to, and it is necessary to consider, the nature and situation of the property. To determine whether particular acts constitute adverse possession, it is sometimes necessary to consider the character of the property and the purposes for which it is suitable, the circumstances attending the possession, the acts and declarations of [the] claimant
The role that the claimant’s state of mind plays in the analysis, of particular importance in the present case, is also well established, although the doctrine is not without nuance.21 On the one hand, it is typically said that the proper inquiry is conducted with reference to the actions and words of the party claiming ownership, not that party’s unexpressed motives, knowledge or beliefs. This court has observed that “the only legitimate inquiry in a case of adverse possession [is] whether the party claiming ownership had the actual, open, adverse occupancy and possession of the controverted property, claiming it as [his] own . . . and actually excluding all other persons from its possession, for an uninterrupted period of fifteen years.” (Internal quotation marks omitted.) O’Connor v. Larocque, 302 Conn. 562, 580–81, 31 A.3d 1 (2011). “The possession alone, and the qualities immediately attached to it, are regarded. No intimation is there as to the motive of the possessor. If he intends a wrongful disseisin, his actual possession for fifteen years, gives him a title; or if he occupies what he believes to be his own, a similar possession gives him a title.” (Emphasis in original.) French v. Pearce, 8 Conn. 439, 443 (1831); see O’Connor v. Larocque, supra, 595 n.23 (“[a] person’s mistaken belief that he or she is the lawful owner is immaterial in an action seeking title by adverse possession“). Thus, a claim of adverse possession is equally valid whether the party making that claim used the property with the knowledge that it was owned by another or, instead, mistakenly believed that he owned the property.
That having been said, consideration of intent is by no means irrelevant to a claim of adverse possession because the claimant must establish that he or she possessed the land “under a claim of right . . . .” (Internal quotation marks omitted.) Horowitz v. F. E. Spencer Co., 132 Conn. 373, 378, 44 A.2d 702 (1945). “[This] means nothing more than [using the land] . . . without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be under a claim of right.” (Internal quotation marks omitted.) Phillips v. Bonadies, 105 Conn. 722, 726, 136 A. 684 (1927). To establish that the claimant used the land under a claim of right, “the intent of the possessor to use the property as his own must be shown. This issue involves an inquiry into his mental condition.” Horowitz v. F. E. Spencer Co., supra, 378–79; see O’Connor v. Larocque, supra, 302 Conn. 581 (“[t]o establish title by adverse possession, the claimant must oust an owner of possession . . . under a claim of right with the intent to use the property as his own and without the consent of the owner” (internal quotation marks omitted)); Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 842, 797 A.2d 18 (same), cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).
This brings us to the issue of permissive use, because prior permission
“[T]o establish the requisite notice of [his] hostile claim to the disputed area, the [claimant must] do something more than what was customary throughout the neighborhood and regarded as permissive . . . .” Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 777–78; see Falvo v. Pejepscot Industrial Park, Inc., 691 A.2d 1240, 1243 (Me. 1997) (when evidence showed that “[the] plaintiffs used [the defendant company’s] land in the same manner as other residents [in the company’s development], that no residents were denied permission to use the land, and that [the] plaintiffs complied with the mill owners’ customary request that residents keep the mill property clean and neat,” use was permissive, and plaintiffs failed to establish required element of hostility); 16 M. Wolf, supra, § 91.05 [5] [a], p. 91-36.1 (“a permissive use, which is consistent with a dedicator’s intent, cannot simultaneously be detrimental to the dedicator’s ownership rights“).
The doctrine of repudiation recognizes that “[p]ossession that is permissive in its inception may become hostile. However, if the original entry is not hostile, it does not become so and the statute does not begin to run as against the rightful owner until the adverse claimant disavows the idea of holding for, or in subservienc[e] to, another and actually sets up an exclusive right in the adverse claimant. If the original entry on land is by permission of the owner or under some right or authority derived from the owner, the possession does not become hostile until the permission or authority has been clearly repudiated by the occupant. To change the character of the possession from permissive to hostile, the disavowal of the record owner’s title and the assertion of an adverse claim must be shown by some clear, positive, and unequivocal act brought home to the owner, such as an explicit disclaimer. Otherwise, the possession will not be presumed to be hostile.” (Internal quotation marks omitted.) Woodhouse v. McKee, supra, 90 Conn. App. 675; see 3 Am. Jur. 2d 132,
Adverse Possession § 47 (2013) (“[i]f the original entry is not hostile, the possession does not become hostile until the adverse claimant disavows the idea of holding for, or in subservienc[e] to, the true owner and actually sets up an exclusive right in the adverse claimant“). “There must be either actual notice of the hostile claim, or acts or declarations of hostility so manifest and notorious, or so open and notorious, that actual notice will be presumed, in order to change permissive possession to hostile or adverse possession.” 3 Am. Jur. 2d, supra, § 47, pp. 132–33. “For the purpose of changing permissive possession to hostile possession, mere possession or ordinary acts of ownership that are consistent with the permission are not enough to provide notice of the hostile claim. The evidence of adverse holding when the original entry is
In the present case, the plaintiff contends that these principles of repudiation, which govern the use of land that was originally permissive, are inapplicable because she and her predecessors had an irrevocable right by deed to pass over the parcel. She contends that her right to use the parcel to pass and repass therefore was not permissive in the sense that would require her to demonstrate repudiation and, thus, that the trial court improperly required her to establish, by clear and convincing evidence, that she had clearly and explicitly repudiated her right to pass and repass in order to establish adverse possession.
We agree with the plaintiff and conclude that the repudiation doctrine does not apply under the circumstances of this case. Research has unearthed no cases or authorities that expressly distinguish permissive use from use pursuant to a right conferred by deed in their treatment of the repudiation doctrine. Our case law, however, has applied the principle that a clear and unequivocal repudiation of the landowner’s permission to use the land for a particular purpose, such as to pass and repass, is required to establish adverse possession only in cases in which (1) the permission was in the form of a personal right or license, not a right conferred by deed, and (2) the claimant had used the land in the manner for which permission was granted. See Vaicunas v. Gaylord, 196 Conn. App. 785, 794, 230 A.3d 826 (2020); Brander v. Stoddard, 173 Conn. App. 730, 747, 164 A.3d 889, cert. denied, 327 Conn. 928, 171 A.3d 456 (2017); Mulle v. McCauley, 102 Conn. App. 803, 813–14, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007); Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 783; Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., supra, 69 Conn. App. 845. Although we have found no cases expressly holding that repudiation is not required when the original permission to use the land for a particular purpose was granted by deed, the proposition stands to reason, and the authorities suggest, that, when the right to use land
for a particular purpose was conferred by deed, and the claimant has used the land for some other purpose that is more extensive than the right conferred by deed, the use may be considered hostile and give rise to a claim of adverse possession. Cf. 2 Restatement (Third), Property, Servitudes § 7.7, comment (c), p. 377 (2000) (‘‘Adverse possession of the . . . servient estate does not affect the servitudes burdening . . . the property unless the adverse possessor also does something to modify or terminate the servitudes. . . . Whether an adverse possessor of a servient estate acquires title free of the servitude burden depends on whether the property has been used in a way that is adverse to the persons entitled to enforce the servitude.’’ (Emphasis added.));22 see also Gemmell v. Lee, 59 Conn. App. 572, 578–79, 757 A.2d 1171 (rejecting defendants’ claim that they had obtained ‘‘sole and exclusive rights’’ to road when their use of road was consistent with their easement over road by deed, and others had continuously used easement), cert. denied, 254 Conn. 951, 762 A.2d 901 (2000).
It makes sense to distinguish for these purposes between permissive use under a revocable personal right or license and use pursuant to a right by deed. A person who is entitled by deed to use land for a particular purpose has no reason, if that right is irrevocable and runs with the land, to claim adverse possession to establish ownership unless they wish to expand their use beyond the scope of the deeded entitlement. By contrast, a person whose permissive use is by personal right or license may wish to obtain ownership by adverse possession, even when they do not intend to expand their use of the land to unpermitted uses because, otherwise, the permission may be revocable and may not be transferable. This difference has consequences for the repudiation doctrine. When a claimant wishing to establish ownership by adverse possession has used the land permissively under a personal right or license, and has used the land only for that purpose, the only way that the landowner can be placed on notice of a claim of adverse possession is by a clear and unequivocal declaration that the claimant is using the land under a claim of right.23 See 3 Am. Jur. 2d, supra, § 48, p. 133 (‘‘mere possession or ordinary acts of ownership that are consistent with the permission are not enough to prove notice of the hostile claim’’ (emphasis added)). When a claimant has permission (whether by deed or otherwise) to use the land for a particular purpose, however, the mere use of the land for a purpose that is not permitted and that is inconsistent with the true owner’s rights should be sufficient to put the landowner on notice of a potential claim of adverse possession. See id., § 47, pp. 132–33 (‘‘acts . . . of hostility so manifest and notorious, or so open and notorious, that actual notice will be presumed . . . [are sufficient] to change permissive possession to hostile or adverse posses-sion’’). For this reason, logic dictates that the repudiation doctrine applies only when the person claiming adverse possession had permission in the form a personal right or license to use the land for a particular purpose
In the present case, the plaintiff is contending that she and her predecessors in title used the parcel for purposes for which they did not have permission, either by license or by deed, and that their use in such a manner was sufficiently open, hostile and notorious to give notice to the defendant of a claim of adverse possession. That is all that the law requires. To the extent the trial court concluded that the plaintiff was required to establish that her predecessors in title had clearly and unequivocally repudiated their right by deed to pass and repass over the parcel to establish a claim of adverse possession, that conclusion was incorrect.
II
We next address the plaintiff’s claim that the trial court incorrectly determined that she failed to establish the elements of adverse possession. She makes two arguments in support of this claim. First, she contends that the trial court improperly required her to establish that she had the subjective intent to use the parcel as an owner to establish that she used the parcel under a claim of right.24 Second, she contends that the court’s conclusion that she failed to establish the elements of adverse possession was so intertwined with its incorrect determination that she was required to establish repudiation of her right by deed to use the property as a right of way that it cannot stand as an independent ground for affirmance. We disagree with both claims.
A
The plaintiff argues that she was not required to establish that she and her predecessors in title had the subjective intent to use the parcel as an owner, but only that they engaged in acts that objectively evinced such an intent. In support of this claim, the plaintiff relies on this court’s statement in French v. Pearce, supra, 8 Conn. 443, ‘‘that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor.’’ The short answer to this argument is that any uncertainty arising from the language employed in French was eliminated by this court in Horowitz v. F. E. Spencer Co., supra, 132 Conn. 373, in which we stated
Indeed, French never held to the contrary. The discussion in that case of the required mental state to establish adverse possession does not question whether a claimant must intend to use the property as his own; such an intention is plainly required. See French v. Pearce, supra, 8 Conn. 443 (holding ‘‘that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character’’ (emphasis added)). The issue addressed in French focused on a related but fundamentally different question: must a claimant intend to act wrongfully when exercising possession over land, that is, must the acts establishing a claim of ownership be accompanied by knowledge that the claim is contrary to the rights of the actual owner? See id., 442–43. The court unequivocally answers ‘‘no’’ to this question, holding that the claimant’s ‘‘guilt or innocence’’ is irrelevant. Id., 443. French holds that the required intention to possess is present, regardless of whether the possession is knowingly wrongful. See
In support of her claim that evidence of intent to use the property as one’s own is not required, the plaintiff cites the statement of the Appellate Court in 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn. App. 776, 54 A.3d 232 (2012), that ‘‘[t]he 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.’’ (Internal quotation marks omitted.) Id., 809. That statement, however, addresses the ‘‘open and visible’’ element of a claim of adverse possession, which focuses on whether the use of the property was sufficiently visible and public that the record title owner was or should have been on notice of the use. The Appellate Court’s observation in 98 Lords Highway, LLC, does not speak to the showing necessary to establish that the claimant is in possession of the property under a claim of right, an inquiry that requires the party claiming adverse possession to establish his or her intention to use the property as its owner. The plaintiff also inaptly cites the Appellate Court’s statements in 98 Lords Highway, LLC, that ‘‘exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; [that is], such acts as would ordinarily be exercised by an owner in appropriating the land to his own use and the exclusion of others. . . . It is sufficient
The trial court correctly determined that the plaintiff was required to prove that she and her predecessors in title subjectively intended to use the property as their own to establish her claim of adverse possession.
B
We next address the plaintiff’s claim that the trial court’s determination that she failed to establish the elements of adverse possession was so intertwined with its incorrect conclusion that she was required to establish that she had repudiated her right by deed to pass and repass over the parcel that it cannot stand as an independent ground for affirmance. The argument is without merit.
We find more than adequate evidence in the record to support each and every finding of the trial court undergirding its rejection of the plaintiff’s various claims proffered to establish adverse possession. Many of these findings are recited earlier in this opinion and will not be repeated here, but the following points well illustrate that the court’s conclusions rest on a solid evidentiary basis. With respect to Stephen and Anne Bradley’s repair of the seawall in front of the parcel in the late 1990s, the trial court noted that the permit application package that the Bradleys submitted to various government agencies contained ‘‘no assertion of [their] exclusive ownership of the parcel.’’ Indeed, the Bradleys’ engineer noted in his letter to the defendant, a copy of which was sent to the Bradleys, that the ‘‘most probable owner’’ of the parcel was either the town of East Lyme or the defendant, and he sought the defendant’s ‘‘endorsement’’ of the project, which it provided. The trial court questioned why the Bradleys would have asked their neighbors to share the expense of the repairs to the seawall in front of the parcel if they were acting under a claim of ownership.
With respect to the septic system, the court found that the limited evidence presented by the plaintiff was insufficient to establish the circumstances of its installation but that it was suggestive of a permissive use. Moreover, as the court observed, because the septic system was underground, it was not a visible or notorious use of the parcel. It certainly cannot be said that the evidence regarding the septic system provides clear and convincing evidence of adverse possession.
With respect to the gravel parking area that encroached on the parcel, the trial court found that the Bradleys did not use the area on a daily basis, but only when they had large gatherings, and that the use of the area to park did not block the right of way. Accordingly, the court concluded that that use was not inconsistent with the defendant’s ownership of the parcel. The court fur-ther found that the Bradley siblings had agreed to a reduction in the purchase price of $68,000 due, in part, to the need to reconfigure the parking area so that it would be located on the plaintiff’s property, with the driveway located over the parcel. In addition, and significantly in our view, the court found that other owners of property abutting the rights of way leading to the shore used the rights of way in a similar manner.
Similarly, nothing in the record leads us to doubt the trial court’s conclusions regarding the maintenance of the lawn by the plaintiff’s predecessors in title and the installation of the birdbath. The court found that there was only limited evidence as to how the shorefront residents of Old Black Point had shared the expense for mowing their lawns, including the rights of way and the seventy-five foot reservation, and that there was no evidence that the Bradleys had acted any differently from the other property owners. The court concluded that this evidence did not constitute ‘‘clear and convincing evidence supporting [the plaintiff’s] adverse possession claim,’’ and we agree. The court also found that there was no evidence as to who had installed the birdbath or when it was installed and that, in any event, it was only thirty-six inches in diameter and not a substantial structure that could give rise to a claim of adverse possession of the entire parcel.
The foregoing findings formed the primary basis of the trial court’s conclusion that the plaintiff had failed to establish adverse possession because her predecessors’ use of the parcel was not hostile, open and notorious. Neither the court’s factual findings nor its corresponding legal conclusion was affected in any respect by
Additional findings of the trial court relating to still more distant historical events further undermined the plaintiff’s claim of adverse possession. During the 1920s and 1930s, Bond’s heirs, some of whom were active in the defendant’s predecessor association, were concerned that the rights of way might be subject to claims of adverse possession. In a letter dated February 8, 1930, one of the heirs, Attorney Stephen Bond, wrote to all of the Old Black Point lot owners expressing his view that the rights of way should be kept open and stating that ‘‘[a] true reflection of community spirit and wishes helps in deciding how these passways shall be treated.’’ Stephen Bond also referred to a merestone being hurled into the sea. In response, Arthur Francis, apparently an owner of property located at Old Black Point, indicated in a letter to Stephen Bond that the merestone had not been moved but merely ‘‘lower[ed]’’ by ‘‘Miss Bradley,’’ or Mary Tremaine Bradley. The trial court concluded that the heirs of Norman J. Bond and the defendant’s predecessor had expressed an intent in this correspondence ‘‘to maintain [the rights of way] for the benefit of the community of owners of lots in the development . . . . They also strove to be neighborly in the maintenance of their control and ownership of the rights of way.’’
The trial court found that the plaintiff had presented no evidence that Mary Tremaine Bradley ‘‘acted in a way inconsistent with her easement over the parcel’’ and that her conduct with respect to the parcel ‘‘was similar to the conduct of other shorefront lot owners in the neighborhood’’ with respect to the rights of way abutting their properties. In other words, because Mary Tremaine Bradley’s activities on the parcel, such as the reconstruction of the seawall and lawn after the 1938 hurricane, which was paid for by her and her neighbor, were consistent with the prevailing ‘‘community spirit’’ at Old Black Point and the actions of other property owners abutting the various rights of way, the activities did not evince an intent to use the property as her own. See 3 Am. Jur. 2d, supra, § 41, p. 127 (‘‘[when] there is a close and cooperative relationship between the record owner and the person claiming title through adverse possession, a presumption of hostility may not apply’’); see also Rudder v. Mamanasco Lake Park Assn., Inc., supra, 93 Conn. App. 777–78 (‘‘to establish the requisite notice of their hostile claim to the disputed area, the [claimants must] do something more than what was customary throughout the neighborhood and regarded as permissive use’’).
These findings, regarding the words and conduct of Stephen Bradley and Mary Tremaine Bradley almost one century ago, indicate either that the plaintiff’s right by deed to pass and repass over the parcel included the implied right to maintain the parcel in various ways for the benefit of all of the property owners entitled to use the right of way, or that the plaintiff’s predecessors in title had an implied license to use the parcel in a manner that was customary in the neighborhood and regarded as permissive. In neither event could the trial court’s legal error regarding the repudiation doctrine have impacted the necessary conclusion that the plaintiff had failed to establish adverse possession.29
III
The plaintiff claims that the trial court incorrectly determined that she slandered the defendant’s title to the parcel under
The clearly erroneous standard applies to our review of the factual findings underlying the determination that a defendant has committed slander of title under
The elements of the statutory claim are informed by its common-law origin. See Fountain Pointe, LLC v. Calpitano, supra, 144 Conn. App. 655
Actual malice has a particular meaning in this context. ‘‘The proper inquiry is whether a defendant believes, honestly and in good faith, in the truth of his statements and whether he has grounds for such belief.’’ Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 638, 969 A.2d 736 (2009). ‘‘[A]ctual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth. . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth. . . . Further, proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice . . . although such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity.’’ (Citations omitted; internal quotation marks omitted.) Id., 637–38. Acting with ‘‘reckless disregard’’ of the truth in this context means recording a notice ‘‘despite [having] a high degree of awareness of probable falsity or entertaining doubts as to its truth.’’ 50 Am. Jur. 2d, supra, § 523, pp. 925–26.
‘‘Malice is not present, for purposes of an action for slander of title, [when] the allegedly slanderous statement regarding the title of property, although false, was made in good faith and with probable cause for believing it or with a reasonable belief in its veracity. . . . The malice necessary for a slander of title action also does not exist when the offending party’s actions rest on a rational, yet incorrect, interpretation of law.’’ (Footnotes omitted.) Id., § 523, pp. 927–28; see Hicks v. Early, 235 Ark. 251, 254, 357 S.W.2d 647 (1962) (‘‘Malice may not be inferred from a mistake of law honestly made. . . . The evidence of malice must support the reasonable inference that the representation not only was without legal justification or excuse, but was not innocently made.’’ (Internal quotation marks omitted.)); Whildin v. Kovacs, 82 Ill. App. 3d 1015, 1016, 403 N.E.2d 694 (1980) (‘‘if the [claimant] . . . has reasonable grounds to believe that he has title or a claim to the property, he has not acted with malice’’); Anton, Sowerby & Associates, Inc. v. Mr. C’s Lake Orion, LLC, 309 Mich. App. 535, 549, 872 N.W.2d 699 (2015) (‘‘slander of title is not established when premised on a rational interpretation of law’’).
In the present case, the trial court concluded that the claim of adverse possession that the plaintiff made in the notice of claim that she recorded on the East Lyme land records was made with a reckless disregard for its truth. In support of this conclusion, the court found, most significantly, that the title affidavit that the Bradley siblings’ representative presented at the closing showed that the plaintiff was aware that the Bradley siblings knew that they did not have title to the parcel and, therefore, must have known that their ‘‘use of the parcel was not with the intent to use [it] exclusively as their own.’’ The court also observed that Grandjean, one of the lawyers consulted by Dowling Sr. had informed his client (whose knowledge the court imputed to the plaintiff) that Anne Bradley participated in the defendant’s board meetings in the mid-1970s during the period when Marrion, the defendant’s attorney, acquired the interests of the Bond heirs in the rights of way and then conveyed those interests to the defendant. In addition, the court observed that Dowling Sr. ‘‘ignored the import of a permissive user seeking to adversely possess the fee of the easement’’ after Grandjean expressed his concerns about the fact that the Bradley family had had a deeded right to pass and repass over the parcel. Finally, the court observed that Grandjean indicated to Dowling Sr. that Marrion had done ‘‘a workmanlike job’’ in identifying the heirs of Norman J. Bond and having their interests in the parcel transferred to the defendant in the 1970s.31 (Internal quotation marks omitted.) The trial court concluded that the plaintiff’s awareness of the facts that her predecessors in title knew that the defendant had record title to the parcel32 and never intended to use the
We do not take these factual findings lightly; nor do we brush aside their legal significance without due consideration. The evidence, as developed at trial, established that the plaintiff had a weak, even unwinnable, claim of adverse possession. Some of that evidence was known to the plaintiff or her husband before the plaintiff filed the notice of her claim of adverse posses-sion on the land records, and most of the relevant facts could or should have been known prior to that time. The sticking point here, however, is that the plaintiff’s claim of adverse possession was premised on an incorrect legal theory, namely, the proposition that a claimant’s lack of subjective intent to use the property as his or her own is not fatal to a claim of adverse possession—and that legal theory was endorsed, and perhaps even generated, by her attorneys. On the basis of advice from her attorneys, including Merriam, the plaintiff believed that she could establish adverse possession by showing that she and her predecessors in title used the property in a manner that objectively evinced ownership, regardless of their subjective beliefs regarding actual ownership. In other words, the plaintiff’s claim was based on the mistaken premise that a person may adversely possess land by accident.
The source of this error is clear from Merriam’s letter to Dowling Sr., outlining the reasoning that would support the plaintiff’s claim of adverse possession. This document was written ‘‘as a forceful statement’’ advocating the plaintiff’s ‘‘best case,’’ not as a neutral opinion letter, but it plainly was not intended to misrepresent the facts or the law; to the contrary, it purported to adhere to the facts, as known to the author, and, more important for present purposes, the letter contained extensive legal citations in support of various legal propositions that plainly were intended to present the client with a true and accurate portrayal of Connecticut law governing adverse possession. In particular, the letter demonstrates without any doubt that the author was aware that the Bradleys disavowed any claim of ownership of the parcel.
After reviewing the facts that had been made known to him, Merriam discussed the law of adverse possession and its component elements, and then applied each aspect of the law to the facts to reach a conclusion arguing that each respective element of adverse possession was established in this case. The letter did not stop there. Merriam proceeded to address two of the arguments against adverse possession that had been raised by the defendant by that point in time, one of which was the claim that the Bradleys never claimed ownership of the parcel. This portion of the letter appears under a separate heading entitled ‘‘Anne Bradley’s alleged opinion regarding the [p]arcel does not affect your adverse possession.’’ (Emphasis in original.) Merriam provides the following advice in this part of the letter: ‘‘Determining adverse possession is an objective test based on the adverse possessor’s actions, not his or her subjective personal opinions. Thus . . . the nature of the possession is the sole inquiry, not the possessor’s subjective intent, since a claimant may acquire title by adverse possession ‘even though the possessor knows that he is wholly occupying 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.’ [Ruick v. Twarkins, 171 Conn. 149, 158, 367 A.2d 1380 (1976).] In 2007 . . . Morris, counsel for [the defendant], asserted that Anne Bradley, a prior owner of the [p]roperty, was an active member of [the defendant]
Two things are clear from this evidence. First, the plaintiff’s lawyer knew, at the time he drafted his letter, that there was significant evidence in the defendant’s possession indicating that the Bradley family had not used the parcel under a claim of ownership. Merriam may not have known the extent of that evidence because it appears that Dowling Sr. had not provided him with the affidavit of title from the closing, but the specific issue clearly had been brought to his attention, and it was directly addressed by him in a portion of the letter explicitly devoted to that very issue. Second, regardless of the volume of evidence regarding the states of mind of the Bradleys with respect to ownership, Merriam considered that evidence legally irrelevant. He advised his clients in no uncertain terms that the various family members’ ‘‘subjective opinions’’ about the ownership of the land and the nature of their own use of it were ‘‘not probative because the [Bradley siblings’] actions, and the actions of other predecessors in title in using and dominating the [p]arcel . . . objectively demonstrate the intent to use the [p]arcel as their own, thereby establishing adverse possession.’’33 (Emphasis in original.)
As we previously explained in our discussion of the relevant legal principles, Merriam (and the plaintiff’s other lawyers) were and remain incorrect on this legal point. A claimant may adversely possess land through mistake, i.e., with the mistaken belief that the claimant owned the land at issue, but Connecticut cases also make it clear that a subjective intent to use the land as one’s own—i.e., under a claim of right—is an essential element of adverse possession.34 The fact that we have concluded that this legal position is wrong, however, does not mean that the position was so irrational that no reasonable attorney
Moreover, although evidence of a bad or corrupt motive or an intent to inflict harm is not required to establish a slander of title claim, lack of such a motive or intent may be probative. See Fountain Pointe, LLC v. Calpitano, supra, 144 Conn. App. 655–56 (‘‘proof that a defamatory falsehood has been uttered with [a] bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice . . . although such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity’’ (internal quotation marks omitted)). It is difficult in the present case to perceive what the plaintiff would have had to gain by recording a notice of a knowingly false claim of adverse possession on the land records. The trial court found that the plaintiff was ‘‘determined to acquire fee to the parcel by negotiation or litigation,’’ but the recording of the notice of claim would have placed little, if any, pressure on the defendant to negotiate or settle the issue of ownership in favor of the plaintiff because there is no evidence that the recording of the notice interfered with the defendant’s right to use the parcel or with any plans to transfer title to it. There is also no evidence that the notice interfered in any way with the rights of neighboring landowners to pass and repass over the parcel. As far as the evidence shows, the plaintiff’s sole motive in recording the notice was to prevent her claim of adverse possession from being extinguished by operation of the MTA. We conclude, therefore, that the trial court incorrectly determined that the defendant established its counterclaim for slander of title under
The judgment is reversed insofar as the trial court found in favor of the defendant on its counterclaim for slander of title, the case is remanded with direction to render judgment for the plaintiff on that claim, and the award of attorney’s fees and costs is vacated; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
Notes
We note that there is some authority for the proposition that adverse possession of the fee title of a property operates indirectly to extinguish any easements in the property. See Boccanfuso v. Conner, 89 Conn. App. 260, 284, 873 A.2d 208 (referring to cases involving ‘‘a claim of adverse possession seeking title to the fee of the land over which an easement existed, which claim, if successful, could operate indirectly to extinguish the easement’’ (emphasis omitted)), cert. denied, 275 Conn. 905, 882 A.2d 668, and cert. denied, 275 Conn. 905, 882 A.2d 668 (2005); id. (‘‘[i]f there is adverse possession sufficient to divest a fee simple title to land, it will also operate to extinguish an easement in such land’’), quoting 3 H. Tiffany, The Law of Real Property (3d Ed. 1939) § 827, p. 397. The defendant in the present case avoids making any express argument that a claimant’s possession of a property that does not operate to extinguish an easement must necessarily also be insufficient to divest the owner of the fee title as a matter of law. As the circumstances of the present case show, however, it may be difficult, as a practical matter, for a claimant to establish the elements of adverse possession when the claimant fails to manifest any intention to prohibit use of land by its record owner or others who have a right to use it.