Date: 03-01-2011

Case Style: Perry D. Caminis v. Austin Troy

Case Number: SC 18335

Judge: Eveleigh

Court: Connecticut Supreme Court

Plaintiff's Attorney: Linda L. Morkan, with whom were John P. Casey and, on the brief, David Thomas Ryan, for the appellants (plaintiffs).

Defendant's Attorney: Robert F. Maslan, Jr., with whom was Carolyn M. Colangelo, for the appellees (defendants).

Description: This appeal arises from an action brought by the plaintiffs, Perry D. Caminis and Diane W. Caminis,1 seeking declaratory and injunctive relief regarding portions of a floating dock and related pilings belonging to their neighbors, the defendants, Austin Troy and Dana Troy, which they claim encroach upon their littoral rights.2 The plaintiffs now appeal, following our grant of certification,3 from the judgment of the Appellate Court, which affirmed in part and reversed in part the judgment of the trial court.4 See Caminis v. Troy, 112 Conn. App. 546, 963 A.2d 701 (2009). On appeal, the plaintiffs claim that the Appellate Court improperly concluded that the doctrine of laches barred the plaintiffs’ request for an injunction, and also, as a matter of law, their request for a declaratory judgment.

We affirm the judgment of the Appellate Court on the alternative ground that the defendants successfully proved at trial that they adversely possessed the contested littoral area, and the plaintiffs’ claims are barred because they were brought outside the fifteen year limitations period set forth in General Statutes § 52-575.5

The following undisputed facts and procedural history are set forth in the opinion of the Appellate Court.

‘‘The parties are neighbors on the eastern shore of the navigable Five Mile River in Norwalk whose residential waterfront properties abut each other near where the river joins Long Island Sound. In 1957, a previous owner of the defendants’ property obtained a permit to build a fixed pier and attached floating dock from the predecessor of the state department of environmental protection (department). These structures existed at the time the plaintiffs purchased their property in 1975.

‘‘In 1984, John Morgan, the defendants’ immediate predecessor in title, obtained from the department a permit to replace the existing float and several pilings and to dredge the area around the floating dock. When this work was completed in 1985, the plaintiffs became concerned that the defendants’ rebuilt float infringed on their littoral rights area, in violation of the 1984 permit. Although they expressed these concerns to the department between 1985 and 1988, they did not engage a surveyor to determine the boundary lines until 2000, when they sought a permit from the department to build a dock of their own.

‘‘In 1991, the defendants purchased their home from Morgan ‘without notice of any issue regarding the location of the pilings and floating dock.’ It was not until 2000 that the plaintiffs asked the defendants to relocate their float to accommodate the plaintiffs’ own proposal for a dock. The defendants declined to do so. Even so, the plaintiffs did not commence the present action until 2005.’’ Id., 550–52.

‘‘On October 12, 2005, the plaintiffs . . . filed a three count complaint against the defendants . . . requesting (1) a declaratory judgment that the defendants had encroached on their [littoral] rights, (2) compensatory damages for the defendants’ violation of those rights and (3) an injunction ordering the defendants not to use, and to remove, any part of their dock system that intruded into the plaintiffs’ littoral rights area. In their amended answer of June 16, 2006, the defendants denied the plaintiffs’ claims but filed seven special defenses and a two count counterclaim.’’ Id., 548–49. In their first special defense, the defendants asserted that the plaintiffs’ claims were brought more than fifteen years after the construction of the dock and, therefore, the claims were barred by § 52-575. In the second count of their counterclaim, the defendants sought a declaratory judgment that they had adversely possessed the contested littoral area for the fifteen year period prescribed by § 52-575 and, therefore, the plaintiffs’ claims were barred by § 52-575.

‘‘After a court trial, the court granted the plaintiffs’ request for a declaratory judgment and thereby set the littoral rights boundary line between the two properties as it had been depicted in a survey commissioned by the plaintiffs in 2000. The court found this line to have been ‘applicable from . . . 1957 to the present.’ It further found that the defendants’ dock and pilings ‘encroach upon the area of the plaintiffs’ littoral rights,’ but denied the plaintiffs’ request for an injunction because it found that the defendants had established their third special defense of laches. . . . Finally, the [trial] court denied both counts of the defendants’ counterclaim and each of their other six special defenses except the second, which pertained to the statute of limitations on the plaintiffs’ abandoned claim for damages.

‘‘The plaintiffs [then] appealed and the defendants . . . cross appealed. The central issue in both appeals [before the Appellate Court was] whether the trial court properly applied the law of laches. The plaintiffs contest[ ed] the validity of the [trial] courts’ finding that, as a matter of fact, the defendants established the basis for their defense of laches. Both parties argue[d] that, as a matter of law, it was inconsistent for the [trial] court to have concluded that proof of the defense of laches barred the plaintiffs from obtaining injunctive relief but did not bar them from obtaining declaratory relief. [The Appellate Court agreed] with the defendants that the [trial] court’s finding of laches was not clearly erroneous as a matter of fact and that this finding required the [trial] court to conclude as a matter of law that the plaintiffs failed to establish their right to affirmative relief [in the form of the requested injunction].’’

Id., 549–50. This certified appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiffs claim that the Appellate Court improperly concluded that the trial court: (1) properly determined that the doctrine of laches barred the plaintiffs’ request for an injunction; and (2) having found laches, was required, as a matter of law, to deny the plaintiffs’ request for a declaratory judgment. The defendants disagree, claiming that the Appellate Court properly concluded that: (1) the trial court properly determined that laches barred the plaintiffs’ request for injunctive relief; and (2) laches similarly barred the plaintiffs’ request for a declaratory judgment.

Pursuant to Practice Book § 84-11,6 the defendants also assert several alternative grounds upon which to affirm the judgment of the Appellate Court.7 In their first and third alternate grounds for affirmance, the defendants contend that the plaintiffs’ claims for a declaratory judgment and injunctive relief are barred under § 52-575, which sets forth a fifteen year statute of limitations within which a property owner must contest the adverse possession of his or her property. Specifically, the defendants assert that because more than fifteen years passed between the construction of the dock in 1985 that allegedly encroached on the plaintiffs’ littoral area, and the plaintiffs’ commencement of this action in 2005, the plaintiffs’ action is barred by adverse possession.8 The defendants further claim that the trial court improperly found that: (1) the defendants could not establish a ‘‘claim of right’’ to the contested littoral area because the dock and pilings had been constructed pursuant to permits issued by the department; and (2) the evidence failed to established that the defendants satisfied the elements of adverse possession.

The plaintiffs disagree. The plaintiffs first claim that the trial court properly determined that the defendants could not establish a claim of right to the contested littoral area because the dock and pilings had been constructed pursuant to two permits. The plaintiffs therefore claim that the defendants cannot assert that they satisfied the element of adverse possession requiring that the dock and pilings had been installed or maintained in the littoral area under a claim of right.

The plaintiffs also claim that the defendants failed to prove by clear and convincing evidence the necessary elements of adverse possession. We agree with the defendants that the trial court improperly found that they could not establish a claim of right and that the evidence failed to establish that the defendants had successfully adversely possessed the contested littoral area. Accordingly, we affirm the judgment of the Appellate Court, albeit on this alternative ground.

We begin by setting forth the applicable standard of review. ‘‘Adverse possession is not to be made out by inference, but by clear and positive proof. . . . [C]lear and convincing proof9 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 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.’’ (Citations omitted; internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989). The burden of proof is on the party claiming adverse possession. Alexson v. Foss, 276 Conn. 599, 614 n.13, 887 A.2d 872 (2006); Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982).

‘‘Despite [this] exacting standard, our scope of review is limited. . . . Because adverse possession is a question of fact for the trier . . . the [trial] court’s findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on 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

. . . . A trial court’s findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court . . . .’’ (Internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., 111 Conn. App. 636, 641, 960 A.2d 1083 (2008); see also Wildwood Associates, Ltd. v. Esposito, supra, 211 Conn. 42 (discussing limited scope of review employed by appellate courts).

In its memorandum of decision, the trial court found that the defendants could not assert a claim of right to the plaintiffs’ littoral area as a result of language in the 195711 and 198412 permits issued by the department to the defendants’ predecessors in title. The trial court found that ‘‘all rights exercised by Morgan and the defendants, as his successors, were granted by the state pursuant to permits issued under the authority of the General Statutes. The actions taken by Morgan and the defendants under the permits were not taken ‘with such circumstances as to evince a claim of exclusive right and title.’ Indeed, by acceptance of the permits they agreed that they were not thereby acquiring ‘any present or future property rights.’ . . . Under these circumstances, the court finds that the defendants have not acquired title to any portion of the plaintiffs’ littoral rights by adverse possession.’’ (Emphasis in original.)

In making this determination, the trial court relied solely on Matto v. Dan Beard, Inc., 15 Conn. App. 458, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988), which it concluded stood for the principle that ‘‘defendant[s] who had exercised rights beyond those granted in a permit issued by the [department], could not thereby acquire the littoral rights of an adjacent littoral owner [by adverse possession].’’ A review of Matto, however, reveals that the trial court incorrectly relied upon it for the principle that a party cannot assert a claim of right when their claim arises under the auspices of a permit.

In Matto v. Dan Beard, Inc., supra, 15 Conn. App. 483–84, the defendants had performed sand and gravel dredging operations under a state issued permit containing language that the permit was not intended to convey any property rights to the permittee and that it was subject to all public and private rights. The crucial consideration in that case, however, was that the defendants claimed the right to adversely possess the ‘‘foreshore,’’ the area of land between high tide and low tide that belongs to the state and, therefore, may not be adversely possessed.13 Id., 482. Additionally, the fact that the permit therein expressly barred the defendants from adversely possessing state owned property merely reinforced the Appellate Court’s conclusion that the defendants were barred from asserting a claim for adverse possession of the foreshore. Id., 483–84. The court in Matto did not conclude that, as a matter of law, a party may never assert a claim of right to adversely possess eligible property simply because the party’s conduct occurred under the auspices of a permit.

The trial court in the present case therefore improperly relied on that decision in finding that the defendants could not satisfy the claim of right element of adverse possession because the dock and pilings had been constructed pursuant to the two permits.

We believe that a proper reading of the 1957 and 1984 permits in the present case; see footnotes 11 and 12 of this opinion; establishes that the department expressly stated that it did not grant the permittees any property rights merely because the department had authorized the construction of a dock that otherwise satisfied relevant laws and regulations. Accordingly, receipt of the permits in 1957 and 1984 did not instantly grant the permittees title or property rights to the contested littoral area underlying the dock and pilings. It is immaterial, however, that the permits did not grant the defendants’ predecessors property rights in, or title to, the plaintiffs’ littoral area, because the permits in this case have no bearing on the defendants’ ability to assert a claim of right as part of a claim of adverse possession. As the Appellate Court correctly stated in Matto v. Dan Beard, Inc., supra, 15 Conn. App. 476, ‘‘[o]ne claiming title by adverse possession always claims in derogation of the right of the true owner, admitting that the legal title is in another. The adverse claimant rests the claim, not on title, but on holding adversely to the true owner for the term prescribed by the statute of limitations.’’

Simply stated, although the two permits did not vest title in the defendants or their predecessors or allow the defendants to bypass the requirements set forth in § 52-575, the permits equally did not render futile the defendants’ ability to assert a claim of right to adversely possess the plaintiffs’ littoral area.

The plaintiffs contend that the trial court properly found that the defendants were barred from asserting a claim of right as a result of this court’s decision in Bloom v. Water Resources Commission, 157 Conn. 528, 536–38, 254 A.2d 884 (1969), a case not relied upon by the trial court. We disagree. In Bloom, the named defendant, the water resources commission, had granted a permit to the defendant, Albert E. Vallerie, to construct a marina on the littoral area appurtenant to Vallerie’s shorefront property. Id., 529. The plaintiffs, owners of property to the immediate north and south of the proposed marina, objected to the granting of the permit, claiming that it would hinder ingress and egress from their property; id., 531; and further claiming that they were entitled to a hearing prior to the issuance of the permit. Id., 532–33, 535. On appeal, this court concluded that the permit at issue, by operation of the limitations contained therein, had granted to Vallerie no rights as against the plaintiffs because the marina was situated within Vallerie’s littoral area, the marina did not encroach upon the plaintiffs’ littoral rights, and, therefore, the plaintiffs were not entitled to a hearing.

Id., 536. Accordingly, Bloom does not address whether a party may establish a claim of right for purposes of adverse possession when its claim occurs under the auspices of a permit.

Having concluded that the trial court improperly determined that the defendants could not assert a claim of right because of the two permits, we next address whether the trial court improperly found that the defendants failed to satisfy the elements of adverse possession.

The defendants claim that the evidence established that they adversely possessed the contested littoral area. The plaintiffs disagree, asserting that the defendants failed to prove by clear and convincing evidence the necessary elements of adverse possession.15 We agree with the defendants that the evidence established that they successfully adversely possessed the contested littoral area.

We begin by setting forth the elements of adverse possession. ‘‘[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 to be made out by clear and positive proof. . . . The burden of proof is on the party claiming adverse possession. . . . Woodhouse v. McKee, 90 Conn. App. 662, 669, 879 A.2d 486 (2005); see also General Statutes § 52-575 (a) (fifteen year statute of limitation); Roche v. Fairfield, [supra, 186 Conn. 498] (stating elements).’’ (Internal quotation marks omitted.) Alexson v. Foss, supra, 276 Conn. 614 n.13.

The following facts were found by the trial court and are relevant to our resolution of the defendants’ claim. Morgan, the defendants’ immediate predecessor in title, reconstructed the dock and pilings in 1985 in the plaintiffs’ littoral area in plain view and without the plaintiffs’ permission. The plaintiffs, aware of the rebuilt dock, immediately believed that it was not in its former location and that it was encroaching upon their littoral area.

The plaintiffs raised their concerns with Morgan, as well as others, for several years, but were unsuccessful in having the dock relocated. From approximately 1988 to 1991, Morgan continued to use the dock exclusively as if the littoral area was his own; he did not relocate the dock or its pilings from the plaintiffs’ littoral area, despite their requests to do so.

Beginning in 1991, when the defendants purchased the property, until 2000, when the survey was completed, and up to 2005, when the plaintiffs commenced this action, the defendants remained in exclusive possession of the contested littoral area. During this period of time, the defendants openly and visibly possessed the littoral area below the floating dock and surrounding the pilings with the intent to use the area as their own. During this period, the defendants rejected the plaintiffs’ requests to relocate the dock from their littoral area. Further, after the defendants refused to relocate the dock, they were informed by the plaintiffs that the 2000 survey definitively demonstrated that the dock and two pilings were within the plaintiffs’ littoral area. When the plaintiffs finally commenced this action in 2005, approximately twenty years had passed since Morgan had reconstructed the dock and pilings on the plaintiffs’ littoral area.

In the portion of its memorandum of decision devoted to the defendants’ claim of adverse possession, the trial court found as follows: ‘‘The evidence establishes that for more than fifteen years prior to the filing of this action, the defendants and their predecessors in title have maintained two pilings within the area of the plaintiffs’ littoral rights. For the same period a [floating dock] has been attached to those pilings during the boating season, which is partially within the area of the plaintiffs’ littoral rights.’’ After analyzing Matto v. Dan Beard, Inc., supra, 15 Conn. App. 458, the trial court then found that, ‘‘[u]nder these circumstances . . . the defendants have not acquired title to any portion of the plaintiffs’ littoral [area] by adverse possession.’’16

In accordance with our standard of review, and after a careful review of the evidence, we are left with the definite and firm conviction that the trial court improperly found that the defendants had failed to prove their claim of adverse possession. We conclude that the defendants, and their predecessor in interest, Morgan, ousted the plaintiffs of possession of the littoral area underlying the floating dock and pilings, kept the plaintiffs out without interruption for more than fifteen years by an open, visible and exclusive possession of the littoral area, under a claim of right with the intent to use the littoral area as their own, and without the consent of the plaintiffs. Accordingly, the defendants have satisfied the elements of adverse possession and, therefore, because the plaintiffs’ action was brought outside the fifteen year limitations period set forth in § 52-575, it is time barred.


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See: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR300/300CR33.pdf

Outcome: The judgment of the Appellate Court is affirmed and the case is remanded to that court with direction to remand the case to the trial court with direction to render judgment for the defendants on the second count of their counterclaim alleging adverse possession.

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