Date: 10-31-2011

Case Style: Theresa P. O'Connor v. Dorothy Larocque

Case Number: SC 18648

Judge: Zarella

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Bruce D. Tyler, for the appellee (named plaintiff).

Defendant's Attorney: John H. Parks, for the appellant (defendant).

Description: The defendant, Dorothy Larocque, appeals1 from the judgment of the trial court quieting title to certain real property in favor of the named plaintiff, 2 Theresa P. O’Connor, predicated on a finding that the plaintiff had disseized the defendant of her interest in the property as a tenant in common. The defendant claims that the trial court improperly determined that the plaintiff had overcome the presumption that possession by a tenant in common is not adverse to another cotenant3 and had proven, by clear and convincing evidence, the elements of an adverse possession.4 The plaintiff responds that the trial court properly concluded that she had overcome the presumption against adverse possession by a tenant in common and had proven its underlying elements. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The record reveals the following uncontested facts and procedural history. The plaintiff and the defendant are sisters, and they have two other siblings. Their father died intestate in 1971, and, by statute,5 a vacant lot (lot) that he had solely owned passed as part of his estate, with a one-third interest passing to his widow, the parties’ mother, and a one-sixth interest passing to each of his four children. A probate certificate of devise or descent reflecting this division of interest was recorded in the land records of the town of Somers (town) on April 14, 1972. On February 27, 1980, the parties’ mother, incorrectly believing that she held full title to the lot, conveyed it to the plaintiff and the plaintiff’s husband by quitclaim deed. The deed conveyed ‘‘all such right and title’’ as the mother ‘‘ha[d] or ought to have’’ in the lot, and not full title to the entire lot.

As a consequence of this misunderstanding and of the plaintiff’s apparent failure to consult the town’s land records, the plaintiff incorrectly believed, like her mother, that she had acquired full title to the lot.

In 1987, the plaintiff and her mother became aware that there was a ‘‘cloud’’ on the title, that her mother had inherited only a one-third interest in the lot and that the defendant and her siblings each had inherited only a one-sixth interest in the lot. The plaintiff, through her attorney, thus asked the defendant to sign a quitclaim deed relinquishing her one-sixth interest to the plaintiff, which the defendant refused to do. In February and April, 2007, the surviving spouse of one of the siblings and the other sibling, who are not parties to this appeal, conveyed their respective one-sixth interests to the plaintiff by quitclaim deed. As a result, prior to the commencement of this litigation, the plaintiff held a five-sixths interest in the lot, and the defendant held a one-sixth interest.

On October 1, 2007, the plaintiff brought the quiet title action underlying this appeal against the defendant, claiming full ownership of the lot. The first count of the complaint alleged ownership through adverse possession. The plaintiff alleged that she had claimed the subject property as her own, continuously and for more than fifteen years, in an open, visible, hostile, notorious, adverse and exclusive manner, from the time she had acquired her mother’s interest on February 27, 1980, to the time she had filed the complaint. In support of her claim, she alleged that she had planted evergreen trees along the perimeter of the lot, paid all of the property taxes, maintained liability insurance, mowed the grass, used the lot for disposing of tree branches and brush from other property and otherwise maintained the property to the exclusion of others. In addition, the plaintiff alleged that her name was listed in the town’s assessment records as the owner of the lot but that she held only a five-sixths interest in the lot.

The plaintiff alleged, in the second count of the complaint, ownership by way of an equitable claim. The basis for this claim was that, because the defendant had prevailed in an earlier adverse possession action against the plaintiff involving nearly identical allegations with respect to an adjoining property, the plaintiff was entitled to prevail on her reciprocal claim in the present action as a matter of fairness. The defendant asserted six special defenses, including that the plaintiff’s claim of adverse possession was defeated by the legal presumption against adverse possession that applies when the parties are tenants in common, and a counterclaim seeking partition or sale of the lot.

Thereafter, the defendant filed a motion for summary judgment. The trial court granted summary judgment in the defendant’s favor as to the second count of the complaint on the ground that it was ‘‘devoid of any allegations resembling any equitable theory of liability.’’ The court added that ‘‘no rule in law or equity exists that the victor in an earlier case becomes the vanquished in a later one merely because their roles have reversed.’’6

The case proceeded to a bench trial on the first count of the complaint and on the defendant’s counterclaim. The plaintiff testified at length regarding actions she had taken that allegedly demonstrated her exclusive possession of the lot. She testified that the lot was adjacent to a large piece of land on which her own home was situated, that one third of the lot consisted of woods and that, shortly after she had acquired her mother’s interest in 1980, she had planted evergreen trees around the remaining two thirds of the lot, which consisted of a grassy field. In addition, her husband had mowed the grass periodically, and, for many years, she had granted annual requests by the Four Town Fair Association to use the lot for parking during the town fair. Since 1980, the plaintiff also had maintained a liability insurance policy, cleaned up brush and leaves and paid all of the real estate taxes due on the lot.7 The plaintiff finally testified that she had not communicated with the defendant for twenty-five years, except for her request through an attorney to sign the quitclaim deed in 1987, and that she had not changed the way in which she had used the lot after learning that she lacked sole ownership.

On cross-examination, the plaintiff conceded that an aerial photograph showing that the wooded portion of the lot was adjacent to the road, that the evergreen trees she had planted were behind the woods on the two sides of the lot bordering her other property, and that the fourth side of the lot was separated from a neighboring property by what appeared to be existing trees, ‘‘fairly and accurately represented the lot . . . .’’

The plaintiff further testified that she had planted the evergreen trees ‘‘pretty far apart’’ and that motor vehicles could enter the lot through spaces in between the trees. In addition, the lot was accessible through a larger space between the trees maintained by the plaintiff, as well as through the woods adjacent to the road. The plaintiff admitted that she had never built a fence around the lot or posted ‘‘No Trespassing’’ signs to deter people from entering. Upon being asked, ‘‘how did you tell [the defendant] that you were adversely possessing against her,’’ the plaintiff responded: ‘‘Through [the] court and lawyers. When . . . the question of the other two lots [involving clouded titles] came up, it was brought up.’’

Upon completion of the plaintiff’s testimony, her husband testified that his Jeep Wrangler and trailer, which together measured approximately seven feet wide by ten feet long, could ‘‘easily’’ be driven onto the lot, as could his full size automobile. The defendant was the last to testify and stated that the plaintiff had never told her that she was claiming exclusive possession of the lot.

During closing arguments, the plaintiff’s attorney argued that the defendant had received notice of the plaintiff’s claim to the property when the defendant commenced similar litigation against the plaintiff seeking to resolve title to two other lots in which both parties had an interest. He specifically argued: ‘‘The [plaintiff] testified that there was a case, and this had come to the attention [of] the parties at the time of [the defendant’s] claim to the property involving the various lots, including this lot. And I’m referring to that case for the purpose of pointing out that the defendant certainly had notice. There was correspondence from attorneys with regard to signing a quitclaim deed.8 . . .

[T]o say that the defendant didn’t know that the plaintiff was claiming this is somewhat disingenuous, to say the least.’’

At the conclusion of the trial, the court rejected the defendant’s special defenses and found that the plaintiff had overcome the presumption that possession by a tenant in common is not adverse to another cotenant and had proven by clear and convincing evidence all of the requisite elements of adverse possession. The court also found in favor of the plaintiff on the defendant’s counterclaim for partition or sale of the lot before rendering judgment quieting title in favor of the plaintiff. Following the trial court’s issuance of its memorandum of decision, the defendant filed a motion seeking an articulation of, inter alia, the basis for the trial court’s findings and conclusion that the record contained clear and convincing evidence sufficient to overcome the presumption against adverse possession by a tenant in common. In replying to multiple questions relating to this issue, the court repeatedly referred to several pages in its memorandum of decision discussing (1) the ‘‘bitter relationship between the parties,’’ who had not spoken in twenty-five years and had been involved in ‘‘prior, acrimonious litigation’’ concerning a different parcel of land conveyed to the defendant by their mother, and (2) the use of the lot as testified to by the plaintiff. The court also took judicial notice of the two prior cases involving litigation between the parties.9 This appeal followed.

The defendant claims that the trial court improperly concluded that the plaintiff had acquired title to the lot by adverse possession. The defendant specifically challenges the trial court’s conclusion that the plaintiff had overcome the presumption that, as a tenant in common, her possession of the lot was not adverse to the defendant. The plaintiff replies that the trial court properly determined that she had satisfied all of the requirements for an adverse possession, including overcoming the presumption against adverse possession by a tenant in common. We agree with the defendant.

We begin with the applicable standard of review.

The plaintiff claims that adverse possession should be reviewed as a question of fact under the ‘‘clearly erroneous’’ standard, whereas the defendant argues that the issue constitutes a question of law subject to our plenary review. Neither party is entirely correct. ‘‘Adverse possession is frequently said to be a question of fact . . . and such question is ordinarily within the province of the jury to determine. It has been more precisely stated, however, that adverse possession usually is a mixed question of law and fact, depending on the circumstances and conduct of the parties as shown by the evidence.’’10 2 C.J.S. 719, Adverse Possession § 292 (2003). Thus, ‘‘[i]t is the province of the jury, or court sitting as a jury, to determine from conflicting or doubtful evidence the existence of facts necessary to constitute adverse possession . . . and that of the court to decide as a matter of law whether the facts found, or which are admitted or undisputed, fulfill the requirements of such possession.’’ Id. ‘‘If there is at least some evidence, although slight, which is sufficient to be submitted to the jury, and which tends to show the existence of the essential facts alleged to constitute adverse possession, and such evidence is disputed, or, if undisputed, is of a doubtful character, the question as to the existence of such facts is one of fact for the jury and should be submitted to [it] for determination, under proper instructions from the court; or in case of a trial by the court alone, the question is one of fact for the court sitting as a jury. . . .

‘‘Whether the facts as found by the jury constitute adverse possession is a question of law for the court.

The fact of adverse possession also is a question of law for the court and should not be submitted to the jury where the facts with regard thereto are admitted, or the evidence thereof is undisputed and susceptible of but one reasonable inference or conclusion, or where the evidence is insufficient to go to the jury on such question as where there is no evidence in the record upon which the jury could base a finding of adverse possession.’’ Id., § 292, pp. 719–20.

Consistent with this principle, this court repeatedly has recognized that ‘‘[i]t is the province of the trial court to find the facts upon which [such a] claim is based. Whether those facts make out a case of adverse possession is a question of law reviewable by this court.’’ Lucas v. Crofoot, 95 Conn. 619, 623, 112 A. 165 (1921); see also Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 43, 47, 557 A.2d 1241 (1989) (stating that reviewing court may examine whether evidential facts are legally or logically inconsistent with trial court’s conclusion of adverse possession and rejecting plaintiffs’ contention that evidence was insufficient as matter of law to support defendants’ claim of adverse possession); Loewenberg v. Wallace, 147 Conn. 689, 699, 166 A.2d 150 (1960) (concluding that mere fact that fence had been in place for more than fifteen years did not, in and of itself, as matter of law, require finding of acquisition of title by adverse possession); Hagopian v. Saad, 124 Conn. 256, 257, 199 A. 433 (1938) (stating that reviewing court may examine legal conclusions drawn from facts found by trial court in adverse possession action); Goodwin v. Bragaw, 87 Conn. 31, 39–40, 86 A. 668 (1913) (stating that facts found were ‘‘inconsistent with any legal conclusion other than that the defendant had acquired by adverse possession title to the space over that portion of the gangway occupied by [the] structure’’); Layton v. Bailey, 77 Conn. 22, 28, 58 A. 355 (1904) (stating that reviewing court may examine conclusion of adverse possession on basis of evidential facts when some or all of facts found by trial court appear to be legally or logically inconsistent with conclusion).

The same principle has been applied in the context of other property takings. See Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 83, 931 A.2d 237 (2007) (‘‘Whether private property has been taken by inverse condemnation is a question of law subject to our plenary review. . . . The trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.’’ [Citation omitted; internal quotation marks omitted.]).

Because a trial court is afforded broad discretion in making its factual findings, those findings will not be disturbed by a reviewing court unless they are ‘‘clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . 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 . . . .’’ (Emphasis added; internal quotation marks omitted.) Caminis v. Troy, 300 Conn. 297, 306, 12 A.3d 984 (2011). ‘‘In applying the clearly erroneous standard of review, [a]ppellate courts do not examine the record to determine whether the trier of fact could have reached a different conclusion. Instead, we examine the trial court’s conclusion in order to determine whether it was legally correct and factually supported. . . . This distinction accords with our duty as an appellate tribunal to review, and not to retry, the proceedings of the trial court.’’ (Internal quotation marks omitted.) Saunders v. Firtel, 293 Conn. 515, 535, 978 A.2d 487 (2009).11

With respect to the standard of proof, ‘‘[a]dverse possession is not to be made out by inference . . . but by clear and positive proof. . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that 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.’’ (Citation omitted; internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, supra, 211 Conn. 42. Application of the pertinent legal standard to the trial court’s factual findings is subject to our plenary review.12 See Davis v. Margolis, 107 Conn. 417, 421–22, 140 A. 823 (1928); see also Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 83 (question of law is subject to plenary review, meaning that ‘‘[t]he trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case’’ [internal quotation marks omitted]).13 ‘‘The burden of proof is on the party claiming adverse possession.’’ Caminis v. Troy, supra, 300 Conn. 305.

We next consider the governing legal principles. Despite extensive case law on the subject, the root of adverse possession in our law is statutory.14 General Statutes § 52-575 (a)15 establishes a fifteen year statute of repose on an action to oust an adverse possessor.

In both form and substance, § 52-575 (a) appears to have remained largely unchanged since its original enactment in 1684. The 1684 statute, in turn, was derived from a 1624 English statute.16 See General Statutes (1821 Rev.) tit. 59, § 1 n.1. Connecticut’s adverse possession statute, in both its current and originally enacted forms, reduces the original English limitations period from twenty years to fifteen, slightly modernizes the statutory language and removes one exception from the statute’s purview. In all other respects, § 52-575 (a) and its predecessors are remarkably similar to the original English statute.

Over the years, this court has further refined and developed the doctrine of adverse possession. In 1811, we stated that an adverse possession consists of ‘‘a possession, not under the legal proprietor, but entered into without his consent, either directly or indirectly given. It is a possession, by which he is disseized and ousted of the lands so possessed. To make a disseisin, it is not necessary, that the disseizor should claim title to the lands taken by him. It is not necessary, that he should deny or disclaim the title of the legal proprietor.

No; it is necessary only, that he should enter into, and take the possession of the lands, as if they were his own; to take the rents and profits, and so manage with the property, as the legal proprietor himself would manage with it. If property be so taken, and so used, by any one, though he claims no title, but avows himself to be a wrongdoer, yet, by such act, the legal proprietor is disseized. . . . In truth, to determine, whether or not, the possession be adverse, it is only necessary, to find out, whether it can be considered as the constructive possession of the legal proprietor. . . . If it be without such consent, and against his will, it is adverse.’’ Bryan v. Atwater, 5 Day (Conn.) 181, 188–89 (1811).

In 1860, we stated more concisely that ‘‘the only legitimate inquiry’’ in a case of adverse possession was 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. Huntington v. Whaley, 29 Conn. 391, 398 (1860). We added that ‘‘[a]n adverse possession is not to be made out by inference . . . but by clear and positive proof’’ and that the doctrine should be strictly applied. Id. In 1866, we further explained what had been implicit in Huntington, namely, that evidence of an open, visible and exclusive possession for an uninterrupted period of fifteen years was required to demonstrate that the adverse possession had occurred with the ‘‘knowledge and acquiescence of the owner’’ and, therefore, that the owner had been given a full opportunity to assert his rightful claim. School District No. 8 v. Lynch, 33 Conn. 330, 334 (1866). Present law likewise requires that, ‘‘[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.’’ (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614 n.13, 887 A.2d 872 (2006). In cases involving claims by one cotenant against another, we have added to this heavy burden by applying a presumption against adverse possession. The rationale for this presumption is that, ‘‘in view of the undivided interest held by cotenants . . . possession taken by one is ordinarily considered to be the possession by all and not adverse to any cotenant.’’ Ruick v. Twarkins, 171 Conn. 149, 157, 367 A.2d 1380 (1976); see also Bryan v. Atwater, supra, 5 Day (Conn.) 191; Doolittle v. Blakesley, 4 Day (Conn.) 265, 272–73 (1810); 3 Am. Jur. 2d 243–44, Adverse Possession § 201 (2002). In other words, the presumption is based on a recognition that one cotenant’s possession is not necessarily inconsistent with the title of the others. See Ruick v. Twarkins, supra, 157; see also Camp v. Camp, 5 Conn. 291, 303 (1824); Bryan v. Atwater, supra, 191.

Although the presumption may be overcome in certain circumstances, it is not easily done. ‘‘[A] cotenant claiming adversely to other cotenants must show actions of such an unequivocal nature and so distinctly hostile to the rights of the other cotenants that the intention to disseize is clear and unmistakable.’’ Ruick v. Twarkins, supra, 171 Conn. 157. Not only must an actual intent to exclude others be demonstrated; id., see also Lucas v. Crofoot, supra, 95 Conn. 624; Newell v. Woodruff, 30 Conn. 492, 497 (1862); Paletsky v. Paletsky, 3 Conn. App. 587, 589, 490 A.2d 545 (1985); Diamond v. Boynton, 38 Conn. Sup. 616, 619, 458 A.2d 18 (1983); but there also must be proof of ‘‘an ouster and exclusive possession so openly and notoriously hostile that the cotenant will have notice of the adverse claim.’’ (Emphasis added.) Ruick v. Twarkins, supra, 158; see also Hill v. Jones, 118 Conn. 12, 16, 170 A. 154 (1934) (‘‘[o]uster will not be presumed from mere exclusive possession of the common property by one cotenant’’).

In discussing the type of conduct required to overcome the presumption, we explained in Newell v. Woodruff, supra, 30 Conn. 492, that acts ‘‘consistent with an honest intent to account to his co-tenant for his share of the rents and profits, as the collection of all the rents, payment of all the taxes, occupation and enjoyment of the entire premises and the like, are termed ‘equivocal,’ because one may possess for all and be willing or compelled to account to all, [whereas] other acts necessarily evince an intent to exclude and hold adversely to his co-tenants, such as refusing to account on the ground that the co-tenant has no right in the property, making explicit claim to the whole and occupying under an avowed or notorious claim of right to the whole . . . denying the right of the co-tenant to possession, and refusing to acknowledge his right or to let him into possession upon demand made. . . . [T]he difference is only in the kind of evidence by which it may be proved in the two cases. As against a co-tenant it can not be proved merely by acts which are consistent with an honest intent to acknowledge and conform to the rights of the co-tenant, although such acts might be sufficient evidence of an ouster between the parties if there was no tenancy in common and each claimed the whole. Hence it has been deemed eminently proper and safe, before bringing an action of ejectment against a tenant in common, to test the intent with which the property is holden by a formal demand to be let into the enjoyment of the right claimed; and a refusal furnishes that clear evidence of ouster which a demand and refusal furnish of a conversion in trover.’’ Id., 497–98.

Connecticut is not alone in establishing a very high bar to overcoming the presumption. It is generally agreed across jurisdictions that, because a relationship of trust between cotenants is presumed whereby one tenant in common holds the property for the benefit of the others, ‘‘there must be some hostile act, conduct, or declaration on the part of the possessor amounting to a repudiation of [the] cotenants’ rights and an assertion of exclusive title in the possessor, of which the cotenants have knowledge or notice.’’17 (Emphasis added.) 3 Am. Jur. 2d 245, supra, § 202. The mere unannounced intention or exclusive possession of one cotenant is not sufficient to support a claim of adverse possession in cases involving tenants in common. See id., §§ 203 and 204, pp. 245–47. Other jurisdictions also have recognized, as we did in Newell, that, ‘‘[w]here one cotenant occupies the common property notoriously as the sole owner, using it exclusively, improving it, and taking to such cotenant’s own use the rents and profits, or otherwise exercising over it such acts of ownership as manifest unequivocally an intention to ignore and repudiate any right in other cotenants, such occupation or acts and claim of sole ownership will amount to a disseisin of the other cotenants, and the possession will be regarded as adverse from the time they have knowledge of such acts or occupation and of the claim of exclusive ownership. However, leasing out the use and possession of the entire premises is not in itself an ouster or disseisin of cotenants nor is it sufficient to establish an adverse possession against them. Whatever significance attaches to the making of improvements on the land depends on their nature and extent and on the particular situation presented, and the making of improvements does not in ordinary circumstances provide a decisive indication of possession adverse to other cotenants.

Although payment of real estate taxes by the cotenant in possession may not be a prerequisite to acquiring title by adverse possession, it is proper to consider payment of taxes as a factor in determining whether a claim of ownership exists or a claim is knowingly adverse, but the fact of payment of taxes may be inadequate or not given much weight.’’ (Emphasis added.) Id., § 209, p. 252; see also id., nn. 1 through 5 (surveying law of other jurisdictions).

Mindful of these principles, this court has considered claims of adverse possession by one cotenant against another on only a few occasions.18 In Lucas v. Crofoot, supra, 95 Conn. 621, 623–27, we upheld a ruling of adverse possession in favor of a plaintiff who had held partial title to an island for twenty-one years. We first observed that, ‘‘[b]ecause of gaps in the record . . . the full legality of the plaintiff’s title [could] only be made out by proof of all the elements of an adverse possession . . . .’’ Id., 623. We then explained that ‘‘[t]he first and vital step [in establishing such a claim] must be the proof of an entry upon the premises and an ouster of the other cotenants’’; id.; and that ‘‘ouster’’ meant ‘‘a possession attended with such circumstances as to evince a claim of exclusive right and title, and a denial of the right of the other tenants to participate in the profits.’’ (Internal quotation marks omitted.) Id. 624. We ultimately concluded that ‘‘the effect’’ of the quitclaim deed from the plaintiff’s predecessor tenant in common ‘‘purporting to convey the whole title’’ to the plaintiff was ‘‘to assert his own title and to deny the title of the other cotenants. . . . When the grantees recorded this deed and entered and took possession thereunder, their possession [was] presumed to have been under the deed itself and not under the title of the cotenants. They entered under a claim and color of right, and this is equivalent to an ouster of the other cotenants, as to whom they thence held adversely. It showed an actual intent to exclude the cotenant permanently from his rights.’’19 (Citation omitted; internal quotation marks omitted.) Id. We further concluded that the adverse possession had been ‘‘continuous and exclusive, open and notorious,’’ for more than twenty years, although ‘‘much less actual use of [the] island [was] necessary to establish [a] claim of ownership than would have been [required in] the case of a tillable farm . . . .’’ Id., 626.

Similarly, in Ruick v. Twarkins, supra, 171 Conn. 149, we concluded that a cotenant had established entry on the premises and ouster sufficient to prevail on a claim of adverse possession because she had obtained a probate decree declaring her to be the sole owner of the contested property, the decree had been registered on the land records and she had continued to occupy and improve the property for more than thirty years. See id., 154, 158. Consequently, we found initial ouster by a tenant in common in both Lucas and Ruick when title to the property had been recorded in her name. See id., 158; Lucas v. Crofoot, supra, 95 Conn. 624; see also Hagopian v. Saad, supra, 124 Conn. 257–59 (concluding that plaintiff had acquired land by adverse possession on basis of agreement executed by tenants in common, and recorded in same manner as deed, dividing property and granting disputed property to plaintiff, who had occupied property for more than fifteen years). This is consistent with our discussion in Newell, although we do not suggest that registration of title in the land records in the adverse possessor’s name alone is the only way to demonstrate ouster when the parties are tenants in common.

For example, we concluded in Camp v. Camp, supra, 5 Conn. 291, that the trial court improperly failed to instruct the jury that it was authorized to presume an ouster of the plaintiff on the ground that, for a period of fifty-seven years, the defendants, members of an ecclesiastical society, had claimed the property as the society’s own, had used it as a parsonage and had had sole and undisturbed possession of the property without the payment of rent and without any claim being made by the plaintiff for the land or the profits derived therefrom. Id., 298, 302. In reaching that conclusion, we relied on Doe ex dem. Fishar v. Prosser, 98 Eng. Rep. 1052 (K.B. 1774) (Doe), deemed ‘‘a leading case’’ on the subject, in which the Court of King’s Bench in England had determined that ‘‘thirty-six years’ sole and uninterrupted possession, by one tenant in common, without any account to, or demand made, or claim set up, by his companion, [was] a sufficient ground for a jury to presume an actual ouster of the co-tenant.’’ (Emphasis added.) Camp v. Camp, supra, 302–303. In Doe, Lord Mansfield, the Chief Justice, first acknowledged that, generally, ‘‘[i]n the case of tenants in common . . . the possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion . . . because such possession is not adverse to the right of his companion, but in support of their common title . . . and by paying him his share, he acknowledges him co-tenant. Nor indeed is a refusal to pay of itself sufficient, without denying his title. But if upon demand by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he claims the whole and will not pay, and continues in possession . . . such possession is adverse and ouster enough.’’ Doe ex dem. Fishar v. Prosser, supra, 1053. Lord Mansfield then determined that, even though there appeared to be no evidence in that case that the plaintiff had sought ejectment of the adverse possessor or had made such demands, the jury had been ‘‘warranted by the length of time . . . to presume an adverse possession and ouster . . . .’’ Id. Joined by Justices Aston, Willes and Ashhurst, who expressed similar views in individual opinions, Lord Mansfield explained that an ‘‘undisturbed and quiet possession’’ of nearly forty years, which was ‘‘more than quadruple the time [allowed under the then existing] statute for tenants in common to bring their action of account,’’ was a ‘‘sufficient ground for the jury to presume an actual ouster . . . .’’ Id.; see also id., 1053–54 (separate opinions of Aston, Willes and Ashhurst, Js.); see also Bryan v. Atwater, supra, 5 Day (Conn.) 188 (‘‘if one tenant in common . . . has been in possession a great number of years, without any accounting to his fellow commoners, this is proper evidence . . . from which the jury may infer an adverse possession’’). Camp thus stands for the proposition that the passage of time, if sufficiently lengthy, may provide the basis for a claim of ouster and adverse possession by a tenant in common who occupies the property for a specific and obvious use, such as a parsonage.20 See Camp v. Camp, supra, 298, 302.

In the present case, the trial court noted that the parties had submitted a stipulation of facts describing the conveyance of the lot following their father’s death.21 The court also made several additional factual findings in concluding that the plaintiff had overcome the presumption and had met her burden of proving adverse possession by a tenant in common. These findings included that (1) the plaintiff had asserted her intent to disseize the defendant and to maintain exclusive right and title to the lot from February 27, 1980, when she had acquired her mother’s interest, (2) the defendant was on notice of the plaintiff’s claim of exclusive right to the lot because of the parties’ ‘‘bitter relationship,’’ as reflected in their history of ‘‘prior acrimonious litigation’’ and lack of communication for twenty-five years, and (3) the plaintiff had satisfied the other elements of an adverse possession because, since 1980, she had paid all taxes on the lot, maintained it together with her husband, planted trees around its perimeter and given the town permission to use it for parking during the annual town fair. In rejecting the defendant’s special defenses, the court further found that there was no evidence that the plaintiff had used the lot with the defendant’s permission and that there had been no occasion for the plaintiff to take any action to exclude the defendant from the lot because the defendant herself had given no indication that she claimed an ownership interest. In addition, the court found that the defendant had not believed or claimed that she had such an interest until 1987, when the family discovered a cloud on the title.

We first conclude that the trial court’s finding that the plaintiff had asserted her intent to disseize the defendant and to maintain exclusive right and title to the lot from February 27, 1980, to the present was clearly erroneous because there was no evidence in the record to support it. See Caminis v. Troy, supra, 300 Conn. 306. As we stated in Newell when discussing the issue of intent, ‘‘actual intent implies actual knowledge, and there can be no wrongful dispossession or wrongful exclusion, no adverse intent and adverse holding, where one is in the enjoyment of that which he honestly supposes is his, and has no knowledge that any other person has, or claims to have, a right to participate in the possession of it. A person who has received by inheritance from his father an estate, and is in the enjoyment of it, is in one sense holding adversely to all the world; but not in the sense in which the term is used in the law of disseisin. He had done and is doing no wrongful act. He has not dispossessed any one, and is not wrongfully excluding any one of whose right or claim he has any knowledge. He is not guilty of any wrongful intent. . . . He is honestly in the enjoyment of an apparent clear right; he knows of no other right to which he should yield, and is conscious of no duty unperformed.’’22 Newell v. Woodruff, supra, 30 Conn. 498; see also Diamond v. Boynton, supra, 38 Conn. Sup. 619 (concluding that, because defendant spouses believed that they owned entire property, they could not satisfy element of intent required for adverse possession of co-owner’s interest).23

In the present case, the plaintiff conceded in her testimony at trial that she believed that she had acquired full title to the lot in 1980 and did not know that she had not acquired full title until 1987. Accordingly, we conclude, as a matter of law, that the plaintiff could not have had the requisite intent to wrongfully exclude the defendant from the lot before 1987 because she believed until that time that she was its sole and exclusive owner.24

There also is no evidence in the record that the plaintiff had the requisite intent to dispossess the defendant in 1987 when she learned that she was not the sole owner of the lot. The only evidence in the record regarding either party’s intent in 1987 was of the defendant’s intent, which consisted of undisputed evidence that the defendant had refused to relinquish her ownership interest in the property when the plaintiff asked her to sign the quitclaim deed, a fact that the trial court recognized when it noted in its memorandum of decision that ‘‘the defendant . . . gave no indication that she claimed an ownership interest . . . until 1987, when the family discovered there was a cloud on the title.’’ (Emphasis added.) There is no countervailing evidence in the record of the plaintiff’s intent to dispossess the defendant after receiving notice of the defendant’s intent to retain ownership of the property.25 The only evidence of the plaintiff’s intent in 1987 or at any other time thereafter is the evidence of conduct consistent with her right to possess the property as a tenant in common with the defendant. We therefore conclude that the trial court’s finding on intent is clearly erroneous because it is unsupported by the evidence.

We also view as clearly erroneous the trial court’s finding that the ‘‘bitter relationship between the parties,’’ as reflected in their history of ‘‘prior acrimonious litigation’’ relating to a similar property, and their lack of communication for twenty-five years was proof of the plaintiff’s notice to the defendant of her intent to claim exclusive possession sufficient to establish adverse possession by a tenant in common. The court specifically found that ‘‘the history between these litigants is strong evidence from which the court can readily infer that [the plaintiff] was claiming an exclusive right to the property and that, clearly, [the defendant] was under no illusion otherwise.’’ We conclude, however, that the evidence on which the court relied was insufficient to support this finding. See Caminis v. Troy, supra, 300 Conn. 306.

The plaintiff conceded in her testimony that she did not give notice of her intent to claim an exclusive right to the lot until the defendant had initiated litigation to acquire full title to two other lots conveyed to the parties by their mother, a fact that the plaintiff’s attorney emphasized during his closing argument when he stated that he had referred to the prior litigation initiated by the defendant ‘‘for the purpose of pointing out that the defendant certainly had notice.’’26 Accordingly, even if we assume that the trial court’s reference to the prior litigation as evidence of the parties’ ‘‘bitter relationship’’ was permissible; cf. Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003) (‘‘[t]here is no question that the trial court may take judicial notice of the file in another case’’ [internal quotation marks omitted]); the acrimony arising from the prior litigation could not have provided sufficient notice to the defendant because the record reveals that the complaint in the first action, Larocque v. Percoski, Superior Court, judicial district of Tolland, Docket No. CV-97-0063927-S (February 18, 2003), which involved the dispute concerning the two other lots, was not filed until 1997, and the complaint in the second action; see Larocque v. O’Connor, 90 Conn. App. 156, 876 A.2d 1229 (2005); which involved the probate dispute, was not filed until 2002.

We therefore conclude that the trial court’s finding that the plaintiff gave the defendant notice of her intent to possess the lot by way of the ‘‘prior acrimonious litigation’’ was clearly erroneous because the first action was commenced approximately ten years, and the second action approximately five years, before the filing of the present complaint, thus falling short of the fifteen year statutory requirement. See General Statutes § 52-575 (a).

Furthermore, there is no evidence in the record that the plaintiff’s possession and use of the lot was so openly and notoriously hostile that the defendant had notice of her adverse possession claim because of that conduct alone. The trial court found that the plaintiff’s adverse use of the lot consisted of her payment of property taxes, maintenance activities such as mowing and cleanup, the planting of trees around the perimeter of the lot and her granting the town permission to use the lot for parking during the annual town fair. All of these activities, however, were entirely consistent with the actions of a tenant in common who shares an interest in the property without an intent to dispossess. See Newell v. Woodruff, supra, 30 Conn. 497 (acts such as paying taxes, collecting rents, occupying and enjoying entire premises are ‘‘ ‘equivocal’ ’’ because they are consistent with right of cotenant to ‘‘possess for all and be willing or compelled to account to all’’). In fact, the trial court determined that the foregoing activities constituted evidence of adverse possession only after relying on the ‘‘prior acrimonious litigation’’ and the parties’ lack of communication to find that the plaintiff had overcome the presumption that possession by one cotenant is not adverse to the other. In other words, the trial court did not conclude that the plaintiff’s use of the lot, standing alone, was sufficient to support a finding of notice, and neither does this court. The plaintiff did not make improvements to the lot and did not occupy the lot for any specific use after she acquired it from her mother in 1980. All that she did to physically occupy the lot was to mow and occasionally clear brush from the field, activities that hardly can be said to provide the type of clear and unmistakable notice required when a tenant in common is claiming exclusive and sole possession. Although the plaintiff also planted trees along two sides of the lot, there is no evidence that the trees could have been easily observed by the defendant because they were not adjacent to the road and were potentially blocked from view by a large section of woods. In addition, the trees were planted on the boundary of the lot in an area contiguous to the plaintiff’s property such that an observer might have concluded that the plaintiff had planted the trees for the purpose of separating the lot from her other property. We thus conclude, as a matter of law, that the trial court’s factual findings regarding intent and notice fall short of those deemed sufficient in past cases to support the conclusion that a tenant in common had acquired property by adverse possession.

In Ruick, for example, we found adverse possession by a tenant in common not only because she occupied the property for more than thirty years but because she had built a house on the property and lived there together with her daughters, made other improvements to the property, including the addition of a barn and garage, collected and retained rents on portions of the property, mortgaged the property, paid taxes on the property and sold a portion of property to the state. Ruick v. Twarkins, supra, 171 Conn. 154–55. Likewise, in Camp, we found adverse possession by a tenant in common who had made active use of the property as a parsonage for fifty-seven years. Camp v. Camp, supra, 5 Conn. 298, 302.

In this case, none of the plaintiff’s conduct after 1987, when the defendant refused to sign the quitclaim deed and thereby asserted her ownership interest in the property, differed from the plaintiff’s conduct before 1987, when she believed that she held full title to the lot. In other words, the plaintiff’s conduct before 1987 was consistent with her belief that she owned the lot adversely to the world, and she did nothing after 1987 that would have given the defendant notice that she intended to disseize her of her individual interest in the lot, such as building a fence with a lock on the gate or posting ‘‘No Trespassing’’ signs around its perimeter.27 See Newell v. Woodruff, supra, 30 Conn. 498 (person who has received inheritance in one sense holds ‘‘adversely to all the world . . . but not in the sense in which [that] term is used in the law of disseisin’’ because there is no wrongful intent).

The present case is reminiscent of White v. Beckwith, 62 Conn. 79, 80–81, 25 A. 400 (1892), in which the plaintiff, a tenant in common who held a warranty deed to the property and paid all of the property taxes for more than forty years, brought an action for ejectment on the ground that he had held actual, open and exclusive possession from 1849 to 1890 and thus had acquired full title by adverse possession. We disagreed, concluding that neither the plaintiff nor his predecessors had physically occupied or made use of the premises during the time in question. Id., 82. We noted that no buildings had been erected on the property, no business had been conducted on the property, and the plaintiff, who lived in Rhode Island and employed someone else to look after the property, had never entered onto the property and actually possessed it. Id., 81. Both the plaintiff and his predecessors merely had assumed that he held full title to the property by virtue of his deed. Id. We thus determined that we could not deem the plaintiff in full possession under the claim and color of title but, rather, that he continued to possess the premises in common with the defendant, who recently had built a boathouse on the property and had claimed the premises in common with the plaintiff. Id., 81–82; see also Newell v. Woodruff, supra, 30 Conn. 499 (concluding that trial court properly granted ‘‘nonsuit’’ in plaintiff’s action for ejectment on ground that there was insufficient evidence of ouster because plaintiff’s letters to defendant made no specific claim to property or demand of possession, and, therefore, his letters were ‘‘equivocal,’’ and because evidence that defendant believed property was her own, that she rented property, that she casually spoke of it as hers and that she paid taxes was ‘‘ ‘equivocal’ ’’ and, standing alone, did not indicate intent to dispossess plaintiff).

In sum, each claim must stand or fall on its own facts. In the present case, there is absolutely no evidence, much less the ‘‘unequivocal’’ and ‘‘distinctly hostile’’ evidence required under our law; (emphasis added) Ruick v. Twarkins, supra, 171 Conn. 157; that the plaintiff expressly notified or conveyed a clear and unmistakable intent to disseize the defendant of her one-sixth interest in the lot fifteen years before she instituted the present action. See id. Rather, the plaintiff testified, and her attorney argued, that she gave the defendant notice in 1997, only ten years earlier. Nor did the plaintiff treat the undeveloped lot in such a manner that the defendant would have believed that the plaintiff intended to exclude her. Although the plaintiff paid taxes, occasionally mowed the lot and allowed the town to use it for parking during the town fair, those actions are minimal in the context of an adverse possession claim involving cotenants, which requires clear and unmistakable notice of the intent to disseize; see id.; such as building an impassable fence or posting ‘‘No Trespassing’’ signs around the property’s perimeter. Accordingly, we conclude that the trial court improperly rendered judgment for the plaintiff on her adverse possession claim.

The dissent declares that ‘‘the trial court made the necessary factual findings to support a conclusion that: (1) the plaintiff took the lot in 1980 under color of title, with the full knowledge of the defendant; (2) neither party at the time was aware of the defendant’s interest in the lot; (3) over the ensuing twenty-seven years the plaintiff acted as if she were the exclusive owner of the lot, without interference from the defendant; and (4) other unique circumstances of the case, in tandem with the plaintiff’s more credible testimony, made clear that the defendant was aware that the plaintiff intended to hold the lot as the exclusive owner.’’ Footnote 13 of the dissenting opinion. In other words, the dissent appears to believe that the trial court’s factual findings support a conclusion of constructive notice.28 The dissent, however, ignores the fact that the reviewing court is required to determine whether the trial court’s findings as to intent and notice are supported by sufficient evidence, and that the trial court in the present case relied on the prior litigation, and not on the factors cited by the dissent, in determining that the plaintiff had given the defendant notice. Moreover, as previously discussed, the dissent disregards established Connecticut law that the cotenant must have knowledge of the cotenancy in order to give proper notice; see Newell v. Woodruff, supra, 30 Conn. 498–99; the defendant’s express rejection of the plaintiff’s request to sign the quitclaim deed, which represented an assertion of her own right to possess the property in 1987, and the plaintiff’s concession and her attorney’s argument that she gave notice to the defendant by way of the prior litigation, which commenced in 1997.

The dissent attacks the relevance of the plaintiff’s concession, claiming that the trial court made no finding that the plaintiff did not give notice of her intent to dispossess the defendant until 1997, that it is not the role of this court to make such a finding, that there is nothing in the plaintiff’s testimony indicating that she ‘‘never provided any notice’’ to the defendant prior to 1997 and that the plaintiff’s testimony does not support the conclusion that she did not give notice until 1997 or that none of her actions prior to that time afforded the defendant constructive notice. Footnote 13 of the dissenting opinion. We emphatically disagree with each of these claims. First, implicit in the trial court’s reference to the ‘‘prior acrimonious litigation’’ was the date the litigation commenced. The fact that the court did not expressly refer to the date is irrelevant. Insofar as the dissent claims that there is nothing in the record indicating that the plaintiff ‘‘never provided any notice’’ to the defendant prior to 1997, the dissent neglects to consider that there must be clear and convincing evidence that the plaintiff did provide notice and that the lack of such evidence in the record is dispositive.

As for the plaintiff’s response to the question of ‘‘how’’ she told the defendant of her adverse possession, her response was unambiguous. Although the dissent contends that the question merely required the plaintiff to explain ‘‘how,’’ rather than ‘‘when,’’ she gave notice to the defendant, either question would have elicited the same response because the event to which she referred, namely, the prior litigation, commenced at a clearly discernable time. Moreover, the plaintiff’s attorney specifically argued, on the basis of her testimony, that, because of correspondence between attorneys for the parties at the time of the prior litigation, it would be ‘‘disingenuous’’ of the defendant to claim that she did not know that the plaintiff intended to dispossess her.

Finally, although the plaintiff testified as to how she made use of the lot after she acquired it in 1980, she never testified that her conduct was intended to give notice to the defendant or that the defendant even knew that she was using the lot. Finally, all of the plaintiff’s activities before 1997 were consistent with the activities of a tenant in common who shares an interest in the property without an intent to wrongfully dispossess the other cotenant. Indeed, the trial court declined to conclude that the plaintiff had given notice solely on the basis of evidence regarding her use of the property before 1997. Accordingly, the only reasonable conclusion that can be drawn from the plaintiff’s testimony is that she gave notice to the defendant in 1997 and did not give notice prior to that time.

The dissent also contends that the trial court’s judgment should be affirmed on the basis of (1) principles29 concerning notice that have not been adopted in Connecticut, and (2) theories that the plaintiff did not raise at trial and that the court did not consider. With respect to the former, the dissent relies on the principle that a cotenant may be deemed to have given proper notice of an intent to dispossess when the land is taken from the outset under an exclusive claim of right, as when the possessor is ignorant that the cotenancy exists, and that, under such facts, ‘‘ ‘much less evidence’ ’’ is needed to establish adverse possession. As previously discussed, the dissent also relies on the principle that there is ‘‘no minimum time frame’’ beyond the statutory period that a cotenant is required to occupy the property exclusively, without more, to establish notice and adverse possession. Text accompanying footnote 27 of the dissenting opinion; see footnote 20 of this opinion. The dissent finally relies on the principle that the law permits ‘‘the trier of fact [to] find ouster, in the absence of any affirmative act of notification, under any other circumstances indicating by clear and convincing evidence that the cotenant in possession intended to hold the property exclusively and the cotenants out of possession had actual or constructive notice thereof.’’30

None of these principles has been recognized in Connecticut, and the dissent’s reasoning as to notice in cases of ignorance, in particular, is in direct conflict with this court’s clear statement of the law in Newell. See footnote 22 of this opinion.

Similarly, the dissent concludes that the judgment should be affirmed on the basis of theories that the plaintiff did not advocate and that the trial court did not consider. Among these theories and conclusions are: (1) the plaintiff’s mistaken belief that she alone had acquired the lot from her mother in 1980, together with other acts consistent with possession such as insuring the property, paying the taxes, allowing parking during the annual town fair, and otherwise acting as if she was the sole owner, afforded the defendant sufficient notice of the plaintiff’s adverse and exclusive possession of the property and that, once the parties discovered that there was a cloud on the title, ‘‘the onus lay on the defendant to indicate that she no longer intended to abide by the status quo,’’ which the defendant failed to do; and (2) the plaintiff gave notice and acquired possession simply by occupying the property exclusively for twenty-seven years, beginning in 1980, when she acquired her mother’s interest, until 2007, when she commenced the present litigation.

In reaching these conclusions, the dissent fails to acknowledge that this court is limited to reviewing whether the trial court’s findings are clearly erroneous and whether, on the basis of those findings, the court properly concluded that the plaintiff acquired the lot by adverse possession. Nevertheless, the dissent’s conclusions under each of the foregoing theories are defeated by the plaintiff’s concession that she did not give notice to the defendant until 1997. Even if this were not the case, however, the plaintiff did not plead or brief the theories on which the dissent relies, and the trial court made no findings and reached no conclusions in support of those theories. Accordingly, this court should not address the issue of a cotenant’s responsibility to reassert ownership after the other cotenant takes possession under the mistaken belief that she is the sole owner of the property and the issue of whether exclusive possession for more than the statutory period, without more, is sufficient to prove adverse possession because the dissent’s legal analysis is inapplicable and inappropriate in light of the circumstances in this case.

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See: http://www.jud.ct.gov/external/supapp/Cases/AROcr/cr302/302CR108.pdf

Outcome: The judgment is reversed and the case is remanded with direction to render judgment for the defendant on the plaintiff’s complaint and for further proceedings on the defendant’s counterclaim seeking sale or partition of the lot.

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