72 Conn. App. 861 | Conn. App. Ct. | 2002
Opinion
The defendants, John A. Seidel and Fred R. Seidel, Jr., appeal from the judgment of the trial court, which resolved this boundary dispute involving property located in the town of Sprague in favor of the plaintiff and also found that the plaintiff held a prescriptive easement over the defendants’ gravel driveway. We affirm in part and reverse in part the judgment of the trial court.
The plaintiff, Chester Lisiewski, owns land to the east of the disputed property and brought this action when the defendants erected a metal gate obstructing his passage over the driveway. On appeal, the defendants claim that the trial court improperly found a latent ambiguity in the deed description of the property and improperly resolved that ambiguity against them. The defendants also challenge the trial court’s determination that the plaintiff holds a prescriptive easement over the driveway, claiming that the plaintiff did not set forth sufficient evidence to establish that his use was not permissive. We agree with the defendants’ first claim. Accordingly, we reverse that part of the judgment determining the location of the shared boundary between the parties. We affirm that part of the judgment finding that the plaintiff held a prescriptive easement over the gravel driveway.
The parcel of land subject to the title dispute is a narrow, L-shaped parcel on the northerly and westerly borders of the plaintiffs land (disputed area). There is also a dispute over an easement to use the existing gravel driveway. Even if one accepts the construction of deeds advanced by the plaintiff, almost all of the gravel driveway is located on the undisputed land of the defendants except for a narrow gore within the
The following undisputed facts and procedural history are relevant to our resolution of this appeal. In the early 1950s, the plaintiff and the defendants’ grandfather, Reinhold Seidel, worked together as foremen in the same factory. At that time, the plaintiff and Seidel negotiated the land conveyance at issue in this appeal. Seidel owned real property in the town of Sprague, which he decided to sell to the plaintiff. In 1952, prior to conveyance, the plaintiff began building a house on the land. During construction, vehicles eventually wore a path near the western boundary of the parcel that Reinhold Seidel would eventually convey to the plaintiff. It was this path that would later evolve into the gravel driveway at issue in this appeal. On April 28, 1954, Seidel conveyed the land to the plaintiffs wife by warranty deed, which was recorded in the Sprague land records in volume 16, pages 410 and 411.
When the plaintiff moved in, the land immediately to the east of the gravel driveway was “practically” a “jungle,” due to heavy foliage. The plaintiff soon cleared and cultivated the area. In late 1954, he planted a row of Hemlocks in that area, roughly parallel to the gravel driveway. In the late 1950s, he built a stone wall in the disputed area. One length of that stone wall lay several feet to the east of the gravel driveway.
Meanwhile, Seidel retained land to the west, including the gravel driveway. This land eventually passed to the defendants. Upon Seidel’s death, the land first passed from his estate to Martha Emma Seidel, his wife. In 1962, Martha Emma Seidel conveyed that land by quitclaim deed dated February 16, 1962, and recorded in the Sprague land records in volume 15, page 413, to her son, Fred Seidel, and his wife Olga. Finally, Fred Seidel and Olga Seidel conveyed the land to their two
Before the defendants acquired the property to the west of what their grandfather had conveyed to the plaintiff, the plaintiff had used the gravel driveway for more than forty years as a means of egress and ingress to and from his property. In 1981, the plaintiff built a garage behind and to the north of his house, connecting with the gravel driveway. Prior to that date, he had simply parked vehicles outside in the same location. The defendants’ predecessors in title, namely their father and grandfather, never challenged the plaintiffs use of the gravel driveway.
Shortly after acquiring the land to the west of the plaintiffs land from their parents, however, the defendants erected a metal gate near the end of the gravel driveway, preventing the plaintiffs passage. The defendants hired a surveyor, Thomas Brennan, who set pins in the ground indicating that their boundary lay near the stone wall built by the plaintiff, to the east of the driveway. In the view of this expert, the defendants held title to most of the gravel driveway and the strip of land between the eastern edge of the driveway and the plaintiffs stone wall.
The plaintiff hired his own surveyor, John Faulise. In the plaintiffs view, most of the gravel driveway remains the property of defendants, but the disputed area to the east of the driveway is his. The court adopted the plaintiffs view as to the ownership of the disputed area and also found that the plaintiff held a prescriptive easement over the gravel driveway.
The exhibit A the court referenced in its judgment was not the exhibit A of the revised amended complaint, but contained the same legal description found on exhibit C of the revised amended complaint. The courses and distances set forth in both exhibit A of the court’s judgment and exhibit C of the revised amended complaint describe only a northerly and westerly line of the disputed area. We mean that the legal description does not close by describing all sides of this L-shaped parcel.
After the judgment was rendered, the defendants filed this appeal. Further facts and procedural history will be set forth where necessary.
The defendants first claim that the court improperly determined that the relevant deed description contained a latent ambiguity. We agree. Accordingly, we reverse that aspect of the trial court’s judgment.
“The principles guiding our construction of land conveyance instruments, such as the [deed] at issue in this appeal, are well established. The construction of a deed . . . presents a question of law which we have plenary power to resolve. ... Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000).” (Internal quotation marks omitted.) Mackie v. Hull, 69 Conn. App. 538, 541, 795 A.2d 1280, cert. denied, 261 Conn. 916, 917, 812 A.2d 865 (2002). “In determining the location of a boundary line expressed in a deed, if the description is clear and unambiguous, it governs and the actual intent of the parties is irrelevant.” (Internal quotation marks omitted.) Id., 542.
The trial court found that there was a latent ambiguity in the deed description of the plaintiffs property used in the conveyance from the defendants’ predecessor in title, Reinhold Seidel, to the plaintiff. “A latent ambiguity arises from extraneous or collateral facts that make
The point of beginning, the easterly boundary and the terminus of the easterly boundary were readily ascertained by both surveyors, Faulise and Brennan. Their locations are undisputed. It is also undisputed that the property described is not a rectangle. The property described contains no right angles, as dictated by the oblique angle formed where Bushnell Hollow Road meets the easterly boundary of the plaintiff along the wire fence abutting land of Gosselin (now land of Gerald Czikowski and Linda Czikowski). The lengths of the boundaries can be followed exactly, yielding a parcel generally looking like a parallelogram, with easterly and westerly boundaries of 415 feet in length each and northerly and southerly boundaries of 200 feet in length each. The four comers of the property can then be located.
However, Faulise, the plaintiffs surveyor, whose view the trial court adopted, contended that the distance between the parallel easterly and westerly boundaries, described as 200 feet in the deed, could not be the
There is an inaccurate assumption in the plaintiffs view of the deed description. The assumption is that the distance between the parallel easterly and westerly boundaries, which distance was also stated as 200 feet in the deed, must be measured from a direction perpendicular to those boundaries. The defendants argued, and we agree, that this is not so. The plaintiffs view would require us to excise the adjective “westerly” from the call “on a line parallel with and 200 feet distant westerly from the first described line” and simply consider it to be a measure of perpendicular distance between the parallel lines. However, “[e]very word, sentence and provision, if possible, is to have effect, and a construction which requires rejection of an entire clause is not to be admitted . . . .” (Internal quotation marks omitted.) Mulla v. Maguire, 65 Conn. App. 525,
We note that the trial court found that “as between the two experts, Mr. Faulise was by far the most credible and expert.” Our appellate review generally defers to the determinations of the trial court regarding factual findings on issues of credibility, unless they are clearly erroneous. Mackie v. Hull, supra, 69 Conn. App. 545.
We therefore reverse the judgment of the court with respect to its holding that the “plaintiff has established through the testimony of his expert and through his deed that he has, in fact, title to the disputed land as set forth on exhibit A [of the judgment] and that the defendants have no title, interest or estate therein.”
The court did not decide the plaintiff’s claim that he had established title by adverse possession to the disputed area because it found that he had title by deed,
The defendants argue that evidence in the record weighs in favor of finding that the plaintiff had either express or implied permission to use the gravel driveway and, thus, that the use was not adverse. Although the defendants’ argument has its appeal, it presents factual considerations that fail to establish that the trial court’s judgment was clearly erroneous.
It was not, as the defendants suggest, the plaintiffs burden to establish that his use of the property was without permission. Such a rule would often charge a party with proving a negative. Rather, it was the plaintiffs burden to establish that his use of the property was under a claim of right. Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983). This is not to say, however, that evidence indicating a lack of permission is irrelevant to whether the plaintiff has established use under a claim of right.
“Whether a right-of-way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered. Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous. McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997). . . . Faught v. Edgewood, Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001).” (Internal quotation marks omitted.) Hoffer v. Swan Lake Association, Inc., 66 Conn. App. 858, 859-60, 786 A.2d 436 (2001).
Although the circumstances of the case are such that implied permission could be rationally found, the failure to so find is not clearly erroneous. The plaintiff, his son and his son’s former wife each testified that permission was never granted. The court was entitled to accord greater weight to that testimony, to find that the use was adverse and to grant the plaintiff an easement over the driveway area by prescription.
In this opinion the other judges concurred.
In its first memorandum of decision, the court initially determined that the question of an easement by prescription was moot after adopting the plaintiffs view of the boundary dispute. This was incorrect, since the plaintiffs boundary theory encompassed only the land to the east of the driveway, not the driveway as well. After all of the parties moved for articulation or
Although this sentence does not contain the language indicating that “it is adjudged,” or that the court “[renders] judgment accordingly,” we treat this as a part of the judgment file required for this appeal.
The plaintiffs survey map indicates a northerly boundary of 213.56 feet in length and a southerly boundary of 205.39 feet in length. In contrast, the deed description called for those boundaries to measure 200 feet in length. The plaintiffs survey rendered lengths inconsistent with the deed description as to three of the four boundaries.
Memorandum of decision, 3.
Count one of the plaintiffs amended revised complaint, asks for a judgment establishing title in the plaintiff by adverse possession over all that land described in “exhibit c” attached to the complaint, dated June 12,2000. When one looks at the record filed April 25, 2001, provided to us, no exhibit is attached to the complaint. Nonetheless, an examination of the trial court file reveals that exhibit c was in fact attached to the amended revised complaint. It describes all that land easterly and northerly of a line described on a certain map entitled “Property Survey prepared for Chester Lisiewski, 108 Bushnell Hollow Road, Sprague, Connecticut, scale 1” = 20’, May 1998,
We remand to the trial court for its determination as to this claim only as to the disputed area as shown on the above referenced Faulise map.
The defendant’s conclude at one point in their brief that the “underlying facts do not support a finding, by clear and positive proof, that the plaintiffs use of the right of way was adverse.” The only argument the defendant’s advance, however, concerns evidence that could support an inferential finding that the plaintiff obtained permission to use the gravel road from persons holding title to it. Therefore, we restrict our analysis to that aspect of the evidence.